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International Law 







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This annual volume of international-law topics has been 
compiled, as formerly, by George Grafton Wilson, LL.D., 
professor of international law at Harvard University. 
It covers the situations and discussions by the War Col- 
lege class of 1933 upon the interesting and timely ques- 
tions of the weakness of local authorities in enforcing 
neutrality ; the maritime jurisdiction around lighthouses ; 
and that subject which came up at the time of the recent 
Sino-Japanese dispute-boycott. While the conclusions 
reached in these discussions are not authoritative in any 
way, they are of especial interest to naval officers as well 
as to students of international law. 

In order to increase the usefulness of this publication, 
criticism and suggestions covering timely topics for 
discussion will be welcomed by the War College. 

L. McNamee, 
Rear Admiral, U.S. Navy, 
President Naval War College. 

September 11, 1933. 



Situation I. — Belligerents in neutral waters 1 

Solution (a), (&), and (c) 1 


Belligerents in neutral jurisdiction 2 

Early American attitude 2 

Essential idea of base 5 

Essential idea of base as regards private vessels. _ 5 

Presumption as to base 6 

Protection afforded by neutral jurisdiction 6 

Case of the Alabama 6 

Argument of Sir Roundell Palmer 13 

Replies to Sir Roundell Palmer 14 

Opinion of Hall 15 

Westlake's opinion, 1907 18 

Opinion of Westlake, 1910 18 

Lawrence on base of operations 19 

General responsibilities 21 

Privileges and obligations of belligerents 21 

Duty of belligerents 22 

Admission of private vessels 23 

Exclusion of vessels of war 23 

Ideas of neutral base 24 

Base in neutral jurisdiction, definition 25 

Franco-Prussian War, 1870 26 

Japanese neutrality, 1870 29 

Practice of intervention 31 

Belligerent vessels and neutral ports 32 

Russo-Japanese War, 1905 35 

General discussion at The Hague, 1907 37 

Report, Hague Conference, 1907 41 

The Tinos, 1917 42 

Disturbed conditions in Danzig, 1931 43 

Attitude of Cuba, 1914 44 

Swiss regulation, 1914 44 

Action of United States, 1914 45 

Colombian attitude, 1914-15 46 

Commission of Jurists, 1923 46 

Responsibility of a State for radio 48 

Control of communications 48 

Basic considerations 49 

Solution (a), , (6), and (c) 51 



Situation II. — Artificial structures and maritime jurisdic- 
tion 53 

Solution (a) , (6) , and (c) 54 

Notes 54 

High seas 54 

Use of the sea 55 

Aids to navigation 56 

General considerations 57 

Suggestions as to jurisdiction 57 

Resolutions, Budapest, 1930 60 

Discussion in the Institut de Droit International, 

1913 60 

Acquisition of island j urisdiction 61 

What is an island 62 

Lighthouses, 1893 64 

Discussion of 1893 attitude 66 

Westlake's opinion 66 

Later opinion 67 

Beacons 68 

Case of United States v. Henning, 1925 69 

Status of air 69 

Liability for use 70 

International significance 71 

Definitions 71 

Rules for air navigation 72 

Portuguese decree, 25 October, 1930 72 

Conventional regulation 72 

Treaties upon aviation 73 

Regulation of air service 74 

Report on air armaments, 1932 74 

Terminology 77 

Need of marine aerodromes 78 

Importance of seadromes 78 

Types of proposals 78 

Evident desiderata 81 

Seadromes not ships 81 

Seadromes in time of war 82 

Artificial extensions of land 85 

Resume* 86 

Solution (a), (b), and (c) - 87 

Situation III. — Boycott 89 

Solution (a), (6), (c), and (d) 89 

Notes 90 

Defining war — 90 

Measures short of war !. 92 

Convention on Contract Debts, 1907 93 


Situation III. — Boycott — Continued. 

Notes — Continued. Page 

Consequences of pacific blockade 94 

Blockade of Buenos Ayres, 1838 95 

Le Comte de Thomar, 1848 96 

Cartagena, 1885 96 

Greece, 1897 97 

Joint blockade, 1913 100 

Blockade of Greece, 1916 101 

Italian blockade of Fiume, 1920 101 

Reprisals 101 

Opinions of writers 102 

Institut de Droit International, 1887 103 

Discussion, 1902 103 

American Institute of International Law, 1925 104 

Pacific blockade and article 16 104 

Object of measures short of war and boycott 106 

Chinese boycott, 1905 108 

Boycott of Danzig 109 

Committee on Boycotts and Peace, 1932 110 

Measures of constraint 111 

The Tampico incident, 1914 112 

Dominican Republic, 1916 115 

Russia, 1917 116 

Dispute between Italy and Greece, 1923 116 

Questions before League of Nations, 1923 118 

Treaty of Versailles, 1919 118 

League of Nations Covenant, 1920 119 

League of Nations and war 119 

League of Nations and measures short of war 120 

Relations of third states 121 

United States Navy Regulations 121 

Locarno treaties, 1925 123 

Pact of Paris, 1928 123 

Collective action 125 

Early United States action 125 

Constitutional provisions of the United States 126 

British-Swedish concert, 1813-14 126 

United action 127 

Cooperation on slave trade 128 

Colombia, 1885 129 

Boxer uprising in China, 1900 129 

Swedish proposition, 1916 132 

Defense and restraint 133 

Severally and jointly 134 

Solution (a), (6), (c), and (d) 135 

Situation I 


States X and Y are at war. Other states are neutral. 
There is a condition of political turmoil in state B, and 
the local authorities are weak and incapable of enforcing 
order within the territory of B. 

(a) A cruiser of X, the Xane, pursues a merchant 
vessel of Y, the Young, into a port of B. What action 
may it take there? 

(b) What action might be taken if the pursued vessel 
were a vessel of war of state Y, the Yarrow f 

(c) What action should the Xane take if it learns that 
a radio station belonging to state B is transmitting mili- 
tary messages for the Yarrow? 


(a) The Xane should take no action against the Young 
merely because the Yotmg has entered the port of B. 
In case the Xane is convinced that the Young is abusing 
its privileges in B because of the weakness of the local 
authorities, the Xane may visit and search the Young 
as a basis for determining subsequent action. 

(b) If the Yarrow remains in port more than 24 hours, 
unless for the lawful taking on of coal or supplies or 
making repairs to render the ship seaworthy, the com- 
mander of the Xane may request the authorities of state 
B to intern the Yarrow. 

(c) The commander of the Xane should protest 
against military use of radio ; and if no competent local 
.authority is present, should take such measures as may 
be least arbitrary to prevent its use. 




Belligerents in neutral jurisdiction. — In general the 
action of belligerents within neutral jurisdiction has year 
by year become more and more restricted. New and 
varied conditions, new instruments and agencies of war- 
fare, and other changes have given rise to problems for 
which conventions and regulations have endeavored to 

It is now generally admitted that a neutral should not 
permit its territory to be used as a base by a belligerent, 
but it is not always clear as to what constitutes such use 
and illustrations of this fact may be found in practically 
every modern war. 

As a state is, in consequence of the allegiance of its 
subjects, under a degree of responsibility for their acts, 
these acts therefore must be supervised within and to a 
degree outside its jurisdiction. 

Early American attitude. — The United States was 
early confronted with conditions which required that the 
position of the Government be defined. The acts of M. 
Genet made some declaration of policy necessary. Wash- 
ington issued a proclamation on April 22, 1793, stating 

Whereas it appears that a state of war exists between Austria, 
Prussia, Sardinia, Great Britain, and the United Netherlands, of 
the one part, and France on the other ; and the duty and interest 
of the United States require that they should with sincerity and 
good faith adopt and pursue a conduct friendly and impartial 
toward the belligerent powers : 

I have therefore thought fit by these presents to declare the 
disposition of the United States to observe the conduct aforesaid 
towards those Powers respectively ; and to exhort and warn the 
citizens of the United States carefully to avoid all acts and pro- 
ceedings whatsoever, which may in any manner tend to contravene 
such disposition : 

And I do hereby also make known, that whosoever of the 
citizens of the United States shall render himself liable to punish- 
ment or forfeiture under the law of nations, by committing, aid- 
ing, or abetting hostilities against any of the said Powers, or by 
carrying to any of them those articles which are deemed contra- 


band by the modem usage of nations, will not receive the protec- 
tion of the United States against such punishment or forfeiture; 
and further, that I have given instructions to those officers, to 
whom it belongs, to cause prosecutions to be instituted against 
all persons, who shall, within the cognizance of the courts of the 
United States, violate the law of nations, with respect to the 
Powers at war, or any of them. (1 Amer. State Papers, For. Rel., 
p. 140.) 

This proclamation showed a disposition to keep the 
conduct of citizens of the United States clearly within 
what was at that time the unquestioned boundaries of 
proper neutral conduct. The action of belligerents with- 
in American jurisdiction gave rise to controversy and the 
Cabinet drew up a set of regulations in August 1793, as 
follows : 

Rules Adopted by the Cabinet as to the Equipment of Vessels 
in the Ports of the United States by Belligerent Powers, 
and Proceedings on the Conduct of the French Minister. 

August 3d, 1793. 

1. The original arming and equipping of vessels in the ports of 
the United States by any of the belligerent parties for military 
service offensive or defensive is deemed unlawful. 

2. Equipments of merchant vessels by either of the belligerent 
parties, in the ports of the United States, purely for the accom- 
modation of them as such, is deemed lawful. 

3. Equipments, in the ports of the United States, of vessels of 
war in the immediate service of the government of any of the 
belligerent parties, which, if done to other vessels, would be of a 
doubtful nature, as being applicable either to commerce or war, 
are deemed lawful ; except those which shall have made prize of 
the subjects, people, or property of France, coming with their 
prizes into the ports of the United States, pursuant to the 
seventeenth article of our treaty of amity and commerce with 

4. Equipments in the ports of the United States, by any of the 
parties at war with France, of vessels fitted for merchandise and 
war, whether with or without commissions, which are doubtful in 
their nature, as being applicable either to commerce or war, are 
deemed lawful, except those which shall be made prize, &c. 

5. Equipments of any of the vessels of France in the ports of 
the United States, which are doubtful in their nature, as being 
applicable to commerce or war, are deemed lawful. 


6. Equipments of every kind in the ports of the United States, 
of privateers of the powers at war with France, are deemed 
lawful [unlawful]. 

7. Equipments of vessels in the ports of the United States, 
which are of a nature solely adapted to war, are deemed unlaw- 
ful ; except those stranded or wrecked, as mentioned in the eight- 
eenth article of our treaty with France, the sixteenth of our 
treaty with the United Netherlands, the ninth of our treaty with 
Prussia ; and except those mentioned in the nineteenth article of 
our treaty with France, the seventeenth of our treaty with the 
United Netherlands, the eighteenth of our treaty with Prussia. 

8. Vessels of either of the parties not armed, or armed previous 
to their coming into the ports of the United States, which shall 
not have infringed any of the foregoing rules, may lawfully en- 
gage or enlist their own subjects or citizens, not being inhabitants 
of the United States ; except privateers of the powers at war with 
France, and except those vessels which shall have made prize, &c. 

The foregoing rules having been considered by us at several 
meetings, and being now unanimously approved, they are sub- 
mitted to the President of the United States. 

Thomas Jefferson. 
Alexander Hamilton. 
Henry Knox. 
Edmund Randolph. 
(7 Moore, International Law Digest, p. 891.) 

Kandolph, Secretary of State, in April 1795 sent to 
the Government of the several states the following cir- 
cular instructions : 

As it is contrary to the law of nations that any of the bellig- 
erent powers should commit hostility on the waters which are 
subject to the exclusive jurisdiction of the United States, so 
ought not the ships of war, belonging to any belligerent power, 
to take a station in those waters in order to carry on hostile 
expeditions from thence. I do myself the honor, therefore, of 
requesting of your excellency, in the name of the President of the 
United States, that, as often as a fleet, squadron, or ship, of any 
belligerent nation, shall clearly and unequivocally use the rivers, 

or other waters of as a station, in order to carry On 

hostile expeditions from thence, you will cause to be notified to 
the commander thereof that the President deems such conduct 
to be contrary to the rights of our neutrality; and that a demand 
of retribution will be urged upon their government for prizes 
which may be made in consequence thereof. A standing order 
to this effect may probably be advantageously placed in the hands 


of some confidential officer of the militia, and I must entreat you 
to instruct him to write by the mail to this Department, immedi- 
ately upon the happening of any case of the kind. (Ibid., 934.) 

This circular he subsequently explained did — 

not request that vessels, using our waters as a hostile station 
should be ordered to depart — 

only that notice should be given to them of our intended demand 
upon their Government. An order to depart would be inconsis- 
tent with the letter of the 9th of Sept. 1793, which concedes to 
them our ports as a refuge in case of necessity and a resort for 
comfort or convenience, without limiting the time of their stay. 
(Ibid., 935.) 

Essential idea of hose. — The essential idea in base 
seems to be a place supporting the military force of the 
belligerent. The support may be of varying character. 
It may be a place from which fuel is drawn, a place to 
which retreat may be made for security, a place in which 
repairs may be made, etc. There would seem therefore 
to be a reason for the consideration of the question as 
to when a neutral port may be said to become a base. 
By the generally accepted law of war and neutrality, 
vessels of war of a belligerent may take a specified 
amount of coal at certain intervals within neutral juris- 
diction, repairs to a limited extent may be allowed, so- 
journ for a period is permitted, etc. To furnish fuel to 
belligerent vessels of war, to allow repairs, to permit 
sojourn beyond the prescribed limits, may render the 
neutral open to charges of nonfulfillment of neutral 

The neutral by modern regulations is under obligations 
to use " due diligence " or " the means at its disposal to 
prevent " violations of its neutrality by vessels of war 
and such use of force may not be considered unfriendly. 

Essential idea of "base as regards private vessels. — Pri- 
vate vessels in the time of war as in the time of peace are 
generally free to enter and to use neutral ports. A pri- 
vate vessel may, however, be subject to the control of a 
belligerent that it may not, in an exceptional case, use a 


neutral port in such manner as to constitute the port a 

Presumption as to base. — The presumption would nat- 
urally be that a vessel of war of a belligerent would, if 
unrestrained, use a neutral port as a base. The presump- 
tion would be that a private vessel entering a neutral port 
would be entering for innocent purposes. 

The obligation of the neutral state would arise imme- 
diately on the entrance of a vessel of war of a belligerent 
to guard against the use of the port as a base. 

The obligation as to a private vessel would arise only 
when there was reasonable evidence of such use. 

There is, therefore, a good ground for difference in the 
regulations as to private and other ships. 

Protection afforded by newtral jurisdiction. — Within 
neutral jurisdiction no act of war should take place. 
Here, therefore, a belligerent vessel is more safe than 
on the high sea or within its own ports for in either of 
these areas the belligerent vessel may be attacked. The 
natural consequence is that the belligerents desire to 
make such use of neutral waters as is permitted. The 
neutral state, in order to maintain neutrality, is obliged 
to make known the rules of conduct which it proposes 
to follow. There have been so many changes in the 
method of warfare that early rules may not be suffi- 
ciently detailed to cover new conditions. The idea of 
the use of an area within neutral jurisdiction as a base 
has gradually developed, though there is not an agree- 
ment as to what constitutes a base. 

Case of the "Alabama." — The idea of " base of opera- 
tions " as set forth in The Hague Convention of 1907 
was influenced by the statement set forth in the second 
rule of the Treaty of Washington of 1871, relating to 
the Alabama claims. These rules provide that a neutral 
government is bound — 

First, to use due diligence to prevent the fitting out, arming, 
or equipping, within its jurisdiction, of any vessel which it has 
reasonable ground to believe is intended to cruise or to carry 


on war against a Power with which it is at peace ; and also to 
use like diligence to prevent the departure from its jurisdiction 
of any vessel intended to cruise or carry on war as above, such 
vessel having been specially adapted, in whole or in part, withm 
such jurisdiction, to warlike use. 

Secondly, not to permit or suffer either belligerent to make 
use of its ports or waters as a base of naval operations against 
the other, or for the purpose of the renewal or augmentation of 
military supplies or arms, or the recruitment of men. 

Thirdly, to exercise due diligence in its own ports and waters, 
and, as to all persons within its jurisdiction, to prevent any vio- 
lation of the foregoing obligations and duties. [1 Moore, Inter- 
national Arbitrations, p. 550.] 

It was admitted in the case for the United States that 
the sale of arms or of military supplies in the way of 
ordinary commerce was not prohibited, but the use of a 
neutral port should not be allowed for a belligerent " for 
the renewal or augmentation of such military supplies or 
arms for the naval operations referred to in the rule." 

The case further stated that, 

The ports or waters of the neutral are not to be made the base 
of naval operations by a belligerent. Vessels of war may come 
and go under such rules and regulations as the neutral may pre- 
scribe; food and the ordinary stores and supplies of a ship not 
of a warlike character may be furnished without question, 'in 
quantities necessary for immediate wants ; the moderate hospitali- 
ties which do not infringe upon impartiality may be extended, 
but no act shall be done to make the neutral port a base of 
operations. Ammunition and military stores for cruisers cannot 
be obtained there; coal cannot be stored there for successive 
supplies to the same vessel, nor can it be furnished or obtained in 
such supplies ; prizes cannot be brought there for condemnation. 
The repairs that humanity demands can be given, but no repairs 
should add to the strength or efficiency of a vessel beyond what is 
absolutely necessary to gain the nearest of its own ports. In the 
same sense are to be taken the clauses relating to the renewal 
or augmentation of military supplies or arms and the recruitment 
of men. As the vessel enters the port, so is she to leave it, with- 
out addition to her effective power of doing injury to the other 
belligerent. If her magazine is supplied with powder, shot, o^ 
shells ; if new guns are added to her armament ; if pistols, or 
muskets, or cutlasses, or other implements of destruction are put 
on board ; if men are recruited ; even if, in these days when steam 


is a power, an excessive supply of coal is put into her bunkers, the 
neutral will have failed in the performance of its duty. [Ibid., 
p. 574.] 

The United States enumerated the certain rules which 
it claimed were established : 

1. That it is the duty of a neutral to preserve strict and im- 
partial neutrality as to both belligerents during hostilities. 

2. That this obligation is independent of municipal law. 

3. That a neutral is bound to enforce its municipal laws and 
its executive proclamations ; and that a belligerent has the right 
to ask it to do so; and also the right to ask to have the powers 
conferred upon the neutral by law increased if found insufficient. 

4. That a neutral is bound to use due diligence to prevent the 
fitting out, arming, or equipping, within its jurisdiction, of any 
vessel which it has reasonable ground to believe is intended to 
cruise or to carry on war against a power with which it is at 

5. That a neutral is bound to use like diligence to prevent the 
construction of such a vessel. 

6. That a neutral is bound to use like diligence to prevent 
the departure from its jurisdiction of any vessel intended to 
cruise or carry on war against any power with which it is at 
peace, such vessel having been specially adapted, in whole or 
in part, within its jurisdiction to warlike use. 

7. That a neutral may not permit or suffer either belligerent 
to make use of its ports or waters as the base of naval operations 
against the other. 

8. That a neutral is bound to use due diligence in its ports or 
waters to prevent either belligerent from obtaining there a renewal 
or augmentation of military supplies, or arms for belligerent 
vessels, or the recruitment of men. 

9. That when a neutral fails to use all the means in its power 
to prevent a breach of the neutrality of its soil or waters, in 
any of the foregoing respects, the neutral should make compensa- 
tion for the injury resulting therefrom. 

10. That this obligation is not discharged or arrested by the 
change of the offending vessel into a public man-of-war. 

11. That this obligation is not discharged by a fraudulent 
attempt of the offending vessel to evade the provisions of a local 
municipal law. 

12. That the offense will not be deposited so as to release the 
liability of the neutral, even by the entry of the offending vessel 
into a port of the belligerent, and there becoming a man-of-war, 
if any part of the original fraud continues to hang about the 
vessel. [Ibid., p. 579.] 


The general propositions laid down in the British case 
are also very suggestive and may be cited in full: 

1. A neutral government is bound to exercise due diligence, to 
the intent that no place within its territory be made use of by 
either belligerent as a base or point of departure for a military 
or naval expedition, or for hostilities by land or sea. 

2. A neutral government is not, by force of the above-mentioned 
obligation or otherwise, bound to prevent or restrain the sale 
within its territory, to a belligerent, of articles contraband of 
war, or the manufacture within its territory of such articles to 
the order of a belligerent, or the delivery thereof within its 
territory to a belligerent purchaser, or the exportation of such 
articles from its territory for sale to, or for the use of, a 

3. Nor is a neutral government bound, by force of the above- 
mentioned obligation or otherwise, to prohibit or prevent vessels 
of war in the service of a belligerent from entering or remaining 
in its ports or waters, or from purchasing provisions, coal, or 
other supplies, or undergoing repairs therein ; provided that the 
same facilities be accorded to both belligerents indifferently ; and 
provided also that such vessels be not permitted to augment their 
military force, or increase or renew their supplies of arms or 
munitions of war, or of men, within the neutral territory. 

4. The unlawful equipment, or augmentation of force, of a 
belligerent vessel within neutral waters being an offense against 
the neutral power, it is the right of the neutral power to release 
prizes taken by means or by the aid of such equipment or aug- 
mentation of force, if found within its jurisdiction. 

5. It has been the practice of maritime powers, when at war, 
to treat as contraband of war vessels specially adapted for war- 
like use and found at sea under a neutral flag in course of trans- 
portation to a place possessed or occupied by a belligerent. Such 
vessels have been held liable to capture and condemnation as 
contraband on proof in each case that the destination of the ship 
was an enemy's port, and provided there were reasonable grounds 
for believing that she was intended to be sold or delivered to or 
for the use of the enemy. 

6. Public ships of war in the service of a belligerent entering 
the ports or waters of a neutral are, by the practice of nations, 
exempt from the jurisdiction of a neutral power. To withdraw 
or refuse to recognize this exemption without previous notice, 
or without such notice to exert, or attempt to exert, jurisdiction 
over any such vessel, would be a violation of a common under- 
standing, which all nations are bound by good faith to respect. 


7. A vessel becomes a public ship of war by being armed and 
commissioned — that is to say, formally invested by order or under 
the authority of a government with the character of a ship 
employed in its naval service and forming part of its marine for 
purposes of war. There are no general rules which prescribe 
how, where, or in what form the commissioning must be effected 
so as to impress on the vessel the character of a public ship of 
war. What is essential is that the appointment of a designated 
officer to the charge and command of a ship likewise designated 
be made by the government, or the proper department of it, or 
under authority delegated by the government or department, and 
that the charge and command of the ship be taken by the officer 
so appointed. Customarily a ship is held to be commissioned 
when a commissioned officer appointed to her has gone on board 
of her and hoisted the colors appropriated to the military marine. 
A neutral power may indeed refuse to admit into its own ports 
or waters as a public ship of war any belligerent vessel not 
commissioned in a specified form or manner, as it may impose 
on such admission any other conditions at its pleasure, provided 
the refusal be applied to both belligerents indifferently; but this 
should not be done without reasonable notice. 

8. The act of commissioning, by which a ship is invested with 
the character of a public ship of war, is, for that purpose, valid 
and conclusive, notwithstanding that the ship may have been at 
the time registered in a foreign country as a ship of that country, 
or may have been liable to process at the suit of a private claim- 
ant, or to arrest or forfeiture under the law of a private claimant, 
or to arrest or forfeiture under the law of a foreign state. The 
commissioning power, by commissioning her, incorporates her into 
its naval force; and by the same act which withdraws her from 
the operation of ordinary legal process assumes the responsibility 
for all existing claims which could otherwise have been enforced 
against her. 

9. Due diligence on the part of a sovereign government signifies 
that measure of care which the government is under an inter- 
national obligation to use for a given purpose. This measure,, 
where it has not been defined by international usage or agreement, 
is to be deduced from the nature of the obligation itself, and from 
those considerations of justice, equity, and general expediency on 
which the law of nations is founded. 

10. The measure of care which a government is bound to use in 
order to prevent within its jurisdiction certain classes of acts,, 
from which harm might accrue to foreign states or their citizens, 
must always (unless specifically determined by usage or agree- 
ment) be dependent, more or less, on the surrounding circum- 


stances, ami can not be defined with precision in the form of a 
general rule. It wculd commonly, however, be unreasonable and 
impracticable to require that it should exceed that which the 
governments of civilized states are accustomed to employ in mat- 
ters concerning their own security or that of their own citizens. 
That even this measure of obligation has not been recognized in 
practice might be clearly shown by reference to the laws in force 
in the principal countries of Europe and America. It would be 
enough, indeed, to refer to the history of some of these countries 
during recent periods for proof that great and enlightened states 
have not deemed themselves bound to exert the same vigilance 
and employ the same means of repression, when enterprises pre- 
pared within their own territories endangered the safety of neigh- 
boring states, as they would probably have exerted and employed 
had their own security been similarly imperiled. 

In every country where the Executive is subject to the laws, 
foreign states have a right to expect — 

(a) That the laws be such as in the exercise of ordinary fore- 
sight might reasonably be deemed adequate for the repression of 
all acts which the government is under an international obliga- 
tion to repress. 

(ft) That, so far as may be necessary for this purpose, the laws 
be enforced and the legal powers of the government exercised. 

But foreign states have not a right to require, where such 
laws exist, that the Executive should overstep them in a particular 
case in order to prevent harm to foreign states or their citizens ; 
nor that, in order to prevent harm to foreign states or their 
citizens, the Executive should act against the persons or property 
of individuals, unless upon evidence which w T ould justify it in 
so acting if the interests to be protected were its own or those 
of its own citizens. Nor are the laws or the mode of judicial 
or administrative procedure which exist in one country to be 
applied as constituting a rule or standard of comparison for 
any other country. Thus, the rules which exist in Great Britain 
as to the admission and probative force of various kinds of testi- 
mony, the evidence necessary to be produced in certain cases, 
the questions proper to be tried by a jury, the functions of the 
Executive in regard to the prevention and prosecution of offenses, 
may differ, as the organization of the magistrature and the dis- 
tribution of authority among central and local officers also differ, 
from those which exist in France, Germany, or Italy. Each of 
these countries has a right, as well in matters wliich concern 
foreign states or their citizens as in other matters, to administer 
and enforce its own laws in its own forum, and according to its 
own rules and modes of procedure ; and foreign states cannot 
3628—34 2 


justly complain of this unless it can be clearly shown that these 
rules and modes of procedure conflict in any particular with nat- 
ural justice, or, in other words, with principles commonly acknowl- 
edged by civilized nations to be of universal obligation. 

In connection with the foregoing propositions are to be taken 
the three rules stated in Article VI. of the treaty, and accepted 
by Her Britannic Majesty's government in the manner expressed 
in that article." (Ibid. p. 599.) 

The Institute of International Law, which in 1874 and 
in 1875 took into consideration the three rules of the 
Treaty of Washington of 1871, adopted in the meeting at 
The Hague in 1875 the following rules : 

1. A neutral State which is desirous of remaining on terms of 
peace and friendship with the belligerents, and of enjoying the 
rights of neutrality, must abstain from taking any part whatever 
in the war, by lending military assistance to one or both of the 
belligerents, and exercise vigilance to prevent its territory from 
becoming a center of organization or point of departure for hostile 
expeditions against one or both of the belligerents. 

2. Consequently the neutral State cannot, in any manner what- 
ever, put at the disposal of any of the belligerent States, or sell 
to them, its war vessels or military transports, nor material from 
its arsenals or military stores, for the purpose of assisting it in 
prosecuting the war. Furthermore, the neutral State is bound to 
exercise vigilance to prevent other persons from placing war 
vessels at the disposal of any of the belligerent States in its 
ports or in those portions of the sea subject to its jurisdiction. 

3. When the neutral State is aware of enterprises or acts of 
this kind, incompatible with neutrality, it is bound to take the 
necessary measures to prevent them, and to prosecute the indi- 
viduals who violate the duties of neutrality, as the guilty parties. 

4. Likewise, the neutral State should not permit nor suffer one 
of the belligerents to use its ports or waters as a naval base of 
operations against the other, or permit military transports to use 
its ports or waters to renew or add to their military supplies 
or arms, or to secure recruits. 

5. The mere fact that a hostile act has been committed upon 
neutral territory is not sufficient to make the neutral State re- 
sponsible. Before it can be admitted that it has violated its duty, 
it must be shown that there was a hostile intention (dolus), or 
manifest negligence (culpa). 

6. Only in serious and urgent cases, and only during the exist- 
ence of war, has the Power injured by a violation of neutral 


-duties the right to consider neutrality as ahandoned and to re- 
sort to force to defend itself against the State which has violated 

In cases of a minor character, or where the matter is not urgent, 
or after the war is over, complaints of this character should be 
settled exclusively by arbitration. 

7. The arbitral tribunal decides ex aequo et bono on the ques- 
tions of damages which the neutral State should, by reason of its 
responsibility, pay to the injured State, either for the State itself, 
or for its nationals (ressortissants) . (Resolutions of the Insti- 
tute of International Law. Carnegie Endowment for Interna- 
tional Peace, 1916, p. 12.) 

Argument of Sir Rovmdell Palmer. — In the supple- 
mental argument supporting the British case before the 
Geneva tribunal, Sir Roundell Palmer said of the expres- 
sion " base of naval operations ", after citing various 
authors : 

The phrase now in question is a short expression of the prin- 
ciple that neutral territory is not to be used as a place from 
which operations of naval warfare are to be carried into effect : 
whether by single ships, or by ships combined in expeditions. It 
expresses an accepted rule of international law. Any jurist who 
might have been asked whether neutral ports or waters might 
be used as a base for naval operations, would have replied that 
they might not ; and he would have understood the words in the 
sense stated above. 

The above citations and references furnish at the same time 
the necessary limitations under which the phrase is to be under- 
stood. None of these writers question — no writer of authority 
has ever questioned — that a belligerent cruiser might lawfully 
enter a neutral port, remain there, supply herself with provisions 
and other necessities, repair damages sustained from wear and 
tear, or in battle, replace (if a sailing-ship) her sails and rigging, 
renew (if a steamer) her stock of fuel,, or repair her engines, 
repair both her steaming and her sailing power, if capable (as 
almost all ships of war now are) of navigating under sail and 
under steam, and then issue forth to continue her cruise, or (like 
the Alabama at Cherbourg) to attack an enemy. " lis y sont 
admis a s'y procurer les vivres necessaires et k y faire les repara- 
tions indispensables pour reprendre la mer et se livrer de nouveau 
aux operations de la guerre;" (Ortolan: Heffter.) "Puis sortir 
librement pour aller livrer de nouveaux combats ; " (Hautefeuille.) 
The connection between the act done within the neutral terri- 


tory and the hostile operation which is actually performed out 
of it, must (to be within the prohibition) be "proximate"; that 
is, they must be connected directly and immediately with one 
another. In a case where a cruiser uses a neutral port to lie in 
wait for an enemy, or as a station from whence she may seize 
upon passing ships, the connection is proximate. But where a 
cruiser has obtained provisions, sail-cloth, fuel, a new mast, or 
a new boiler-plate in the neutral port, the connection between 
this and any subsequent capture she may make, is not " proxi- 
mate ", but (in the words of Lord Stowell, quoted by Kent, 
Wheaton, and other writers) "remote." The latter transaction 
is " universally tolerated " ; the other universally forbidden. 

It is evident that if this phrase, " base of operations ", w T ere 
to be taken in the wide and loose sense now contended for by 
the United States, it might be made to comprehend almost every 
possible case in which a belligerent cruiser had taken advantage 
of the ordinary hospitalities of a neutral port. It would be in 
the power of any belligerent to extend it almost indefinitely, so 
as to fasten unexpected liabilities on the neutral. (Papers relat- 
ing to Treaty of Washington, vol. 3, p. 434.) 

Replies to Sir Rowidell Palmer. — In the reply of Mr. 
Evarts to the argument of Sir Roundell Palmer, Mr. 
Evarts admits that ordinary dealings in contraband in 
the way of regular commerce is not prohibited. He adds, 

But whenever the neutral ports, places, and markets are really 
used as the bases of naval operations, when the circumstances 
show that resort and that relation and that direct and efficient 
contribution and that complicity and that origin and authorship, 
which exhibit the belligerent himself, drawing military supplies 
for the purpose of his naval operations from neutral ports, that 
is a use by a belligerent of neutral ports and waters as a base of 
his naval operations, and is prohibited by the second Rule of the 
Treaty. Undoubtedly the inculpation of a neutral for permitting 
this use turns upon the question whether due diligence has been 
used to prevent it. 

The argument upon the other side is that the meaning of " the 
base of operations ", as it has been understood in authorities 
relied upon by both nations, does not permit the resort to such 
neutral ports and waters for the purpose of specific hostile acts, 
but proceeds no further. The illustrative instances given by Lord 
Stowell or by Chancellor Kent in support of the rule are adduced 
as being the measure of the rule. These examples are of this- 


nature: A vessel cannot make an ambush for itself in neutral 
waters, cannot lie at the mouth of a neutral river to sally out to 
seize its prey, cannot lie within neutral waters and send its boats 
to make captures outside their limits. All these things are pro- 
scribed. But they are given as instances, not of flagrant, but of 
incidental and limited use. They are the cases that the com- 
mentators cite to show that even casual, temporary, and limited 
experiments of this kind are not allowed, and that they are fol- 
lowed by all the definite consequences of an offence to neutrality 
and of displeasure to a neutral, to wit, the resort by such neutral 
power to the necessary methods to punish and redress these 
violations of neutral territory. (Ibid., p. 460.) 

Mr. Waite, replying to Sir Koundell Palmer's argu- 
ment in regard to " base of operations ", said : 

It is not contended by the Counsel of the United States, that 
all supplies of coal in neutral ports to the ships of war of bellig- 
erents, are necessarily violations of neutrality, and, therefore, 
unlawful. It will be sufficient for the purposes of this controversy, 
if it shall be found that Great Britain permitted or suffered the 
insurgents " to make use of its ports or waters as the base of 
naval operations against the United States", and that the supplies 
of coal were obtained at such ports to facilitate belligerent opera- 

1. All naval warfare must, of necessity, have upon land a " base 
of operations." To deprive a belligerent of that is equivalent 
to depriving him of the power to carry on such a warfare success- 
fully for any great length of time. Without it he cannot maintain 
his ships upon the Ocean. 

2. A " base of operations " for naval warfare is not alone, as 
seems to be contended by the distinguished Counsel of Great 
Britain, (sec. 3, chap, iii, of his argument,) "a place from which 
operations of naval warfare are to be carried into effect." It 
is not, of necessity, the place where the belligerent watches for, 
and from which he moves against, the enemy ; but it is any 
place at which the necessary preparations for the warfare are 
made ; any place from, which ships, arms, ammunition, stores, 
equipment, or men are furnished, and to which the ships of the 
navy look for warlike supplies and for the means of effecting the 
necessary repairs. It is, in short, what its name implies — the 
support, the foundation, which upholds and sustains the operations 
of a naval war. (Ibid., p. 513.) 

Opinion of Hall. — The opinion of Hall that " con- 
tinued use is above all things the crucial test of a base " 


can hardly be supported. Indeed, Hall's own position 
seems in some respects to be inconsistent with this doc- 
trine. A somewhat extended quotation from Hall shows 

An argument placed before the Tribunal of Arbitration at 
Geneva on behalf of the United States, though empty in the par- 
ticular case to which it was applied, suggests that the essential 
elements of the definition of a base possess a wider scope than 
is usually given to them. In 1865 The Shenandoah, el Confederate 
cruiser, entered Melbourne in need of repairs, provisions, and 
coal, and with a crew insufficient for purposes of war. She was 
refitted and provisioned, and obtained a supply of coal, which 
seems to have enabled her to commit depredations in the neigh- 
bourhood of Cape Horn on whalers belonging to the United States, 
her crew having been surreptitiously recruited at the moment of 
her departure from Port Philip. It was urged on the part of 
the government of that country that " the main operation of the 
naval warfare " of The Shenandoah having been accomplished 
by means of the coaling " and other refitment ", Melbourne had ; 
been converted into her base of operations. The argument was 
unsound because continued use is above all things the crucial test 
of a base, both as a matter of fact, and as fixing a neutral with 
responsibility for acts in themselves innocent or ambiguous. A 
neutral has no right to infer evil intent from a single innocent 
act performed by a belligerent armed force ; but if he finds that 
it is repeated several times, and that it has always prepared the 
way for warlike operations, he may fairly be expected to assume- 
that a like consequence is intended in all cases to follow, and 
he ought therefore to prevent its being done within his territory .. 
If a belligerent vessel, belonging to a nation having no colonies, 
carries on hostilities in the Pacific by provisioning in a neutral 
port, and by returning again and again to it, or to other similar 
ports, without ever revisiting her own, the neutral country prac- 
tically becomes the seat of magazines of stores, which though not 
warlike are necessary to the prolongation of the hostilities waged 
by the vessel. She obtains as solid an advantage as Russia in- 
a war with France would derive from being allowed to march her 
troops across Germany. She is enabled to reach her enemy at a 
spot which would otherwise be unattainable. [An illustration of 
this is afforded by the voyage of the Russian Fleet, which quitted 
Libau on October 15, 1904, and was annihilated at the battle of 
the Tsu-shima, on May 26, 1905. During the whole of this period 
the squadrons both of Admiral Rohjestventsky, which went round 

hall's opinion 17 

the Cape, and of the divisional commanders, who used the Suez 
Canal, were entirely cut off from their base; they never touched 
Russian territory from the hour they left the home waters, and 
they were entirely dependent for their supplies of coal and of 
fresh provisions upon what they could obtain on the way. A 
series of floating coal depots, indeed, had been laid down in 
advance, but the operation of coaling seems to have taken place 
more than once within territorial waters, and it is obvious that 
without a user of neutral ports, which is in conflict with the prin- 
ciples laid down above, the expedition could only have accom- 
plished a small portion of its journey. The prolonged stay of 
the same fleet both at Madagascar and in French Cochin China 
is difficult to reconcile with the obligations of neutrality. 1 ] 

That previously to the American Civil War neutral states were 
not affected by liability for acts done by a belligerent to a further 
point than that above indicated, there can be no question ; but 
there is equally little question that opinion has moved onwards 
since that time and the law can hardly be said to have remained 
in its then state. Even during the American Civil War ships 
of war were only permitted to be furnished with so much coal 
in English ports as might be sufficient to take them to the nearest 
port of their own country, and were not allowed to receive a 
second supply in the same or any other port, without special 
permission, until after the expiration of three months from the 
date of receiving such coal. The regulations of the United States 
in 1870 were similar; no second supply being permitted for three 
months unless the vessel requesting it had put into a European, 
port in the interval. 2 When vessels were at the mercy of the 
winds it was not possible to measure with accuracy the supplies 
which might be furnished to them, and as blockades were seldom 
continuously effective, and the nations which carried on distant 
naval operations were all provided with colonies, questions could 
hardly spring from the use of foreign possessions as a source of 
supplies. Under the altered conditions of warfare matters are 

t 1 See Smith and Sibley, International Law, 460-2. By the Declaration 
of the Governor of Malta of August 1904, belligerent vessels proceeding 
to the seat of war, or to any positions on the line of route with the 
object of intercepting neutral vessels, were prohibited from making use of 
British territorial waters for the purpose of coaling. Vessels in distress 
were exempted. Similar instructions were sent to the Governors of the 
Colonies (The Times, 23d August 1904; Smith and Sibley, op. cit, 135).] 

2 Earl Russell to the Lords Commissioners of the Admiralty, January 31, 
1882. State Papers, 1871, lxxi. 167. Among late writers, Ortolan 
(ii. 286), Bluntschii (§773), and Heffter (§149) simply register the 
existing rule. Calvo (§2674) expresses his approval of the English 


changed. When supplies can be meted out in accordance with 
the necessities of the case, to permit more to be obtained than 
can, in a reasonably liberal sense of the word, be called necessary 
for reaching a place of safety, is to provide the belligerent with 
means of aggressive action ; and consequently to violate the essen- 
tial principles of neutrality. (Hall, International Law, 8th ed., 
p. 724.) 

Westlake's opinion, 1907. — Writing in 1907 and taking 
into consideration The Hague Conventions, Westlake 
says in regard to the Rules of the Treaty of Washington, 
" Some doubt has been felt whether ' base of operations ' 
in the second rule was not intended to refer to a base 
used for large or repeated operations, the departure of a 
single ship from a neutral port having been dealt with 
in the first rule. But the term ' base ' does not in itself 
carry any implication as to the importance or number of 
the operations proceeding from it, and the principle is 
the same whether an expedition consists of a fleet or of 
a single ship. Nay, more, the principle is the same for 
expeditions starting from land or from sea frontiers. 
The departure of a force from either with belligerent 
intent is a matter which in every country is reserved for 
the public authority, and any private person or foreign 
government which presumes to dispatch a force with 
such an intent usurps that authority, and involves the 
territorial government which permits such a usurpation 
in the charge of participating in the war. We are then 
entitled to omit the word ' naval ' from the second 
Alabama rule, and to expand 'ports and waters' into 
' territory.' We have it thus as a general rule that * a 
neutral government is bound not to permit either bellig- 
erent to make use of its territory as the base of operations 
against the other, or for the purpose of the renewal or 
augmentation of military supplies or arms, or the recruit- 
ment of men \" (International Law, part II ; War, p. 

Opinion of Westlake, 1910. — Some writers upon the 
subject of what constitutes a base have endeavored to 
introduce the idea of habitual or repeated use as a neces- 


sary prerequisite. Professor Westlake in 1910 referred 
to this idea, 

L'interdietion de la transformation de ports neutres en bases 
d 'operations navales n'exclut pas seulement une serie de pareilles 
operations. Une seule peut etre assez importante pour compro- 
mettre la neutrality d'un port qui en a ete la base. Ainsi un 
Etat qui entend maintenir une neutralite impartiale ne jouit que 
d'un champ tres restreint pour fixer a son gre la duree et les con- 
ditions du sejour des navires belligerants. Encore ce champ peut- 
il lni etre plutot nuisible. II se peut qu'il veuille se reserver une 
certaine liberte de choix dans le matiere, moins pour pouvoir sub- 
stitner une neutralite bienveillante a une neutralite impartiale, 
que pour montrer aux deux parties de petites complaisances et 
eviter des explications facheuses avec l'une et l'autre egalement. 
Mais, meme dans ce cas, l'Etat neutre ferait mieux cl'aider a 
l'etablissemont de regies qu'il pourrait invoquer comme justifiant 
sa conduite. Leur existence empecherait de se produire mainte 
plainte au sujet de laquelle, une fois produite, les explications 
pourraient etre strictement suffisantes mais laisser fermenter une 
amertume dans les rapports subsequent^ des puissances en ques- 
tion. (23 Annuaire de l'lnstitut de Droit International, p. 132.) 

Lawrence on base of operations. — The change of atti- 
tude upon the idea of " base of operations " is evident in 
the opinion of Dr. Lawrence as set forth in the earlier 
and later editions of his book Principles of International 
Law. Referring to Hall's statement that " continued 
use is above all things the crucial test of a base," 
Lawrence sa}^s : 

and it is difficult to resist the arguments in favor of this view, 
which applies to a fleet or a single ship as well as to an army or 
a detachment of troops. The drawing of supplies once or twice 
from a given point in the course of long-continued hostilities will 
not make it into a base. Constant communication must be kept 
up with it, from it a stream of supplies must flow, and the way 
to it must be open for trains and convoys to pass and repass. 
General Sherman, in his march through Georgia in the autumn 
of 1864, was said to have cut himself off from his base, because 
for several weeks he was out of reach of communications from 
his own side, nor could he draw stores and reinforcements from 
any point in the possession of the Northern forces. The fact that 
he took provisions and forage from place after place passed by 
his army on its march did not make any of them into a base of 
operations, because the element of continuous use was wanting.. 


Now if we apply those considerations to assist us in determining 
the sense to be put upon the phrase when we find it in a rule of 
International Law, we shall be forced to the conclusion that a 
belligerent does not make neutral territory or a neutral port into 
a base of operations by obtaining in it once or twice, or at in- 
frequent intervals, such things as provisions, coals and naval 
stores. It is true that there are some articles so directly useful 
for purposes of hostility that to take even a single supply of 
them is forbidden. But these restraints are imposed by the law 
of nations directly and in so many words. They are not left to 
be derived by construction from an interpretation of general 
terms. Other matters must be referred to in the prohibition of 
the use of neutral territory as a base of operations. Undoubtedly 
it is aimed at the frequent drawing of stores and equipments from 
depots situated in neutral territory and always open to the 
belligerent for the replenishment of his magazines. Each separate 
supply may be innocent in itself, or at most of a doubtful nature. 
It is their constant recurrence which makes them illegal. (1895 
edition, p. 504.) 

In the 1910 edition of the same work Lawrence says : 

" but it is difficult to resist the argument that, though continuous 
use does undoubtedly make a place from which supplies and rein- 
forcements are drawn into a base, yet we cannot go so far as to 
say that without continuous use there can be no question of any 
violation of neutrality. It is quite possible, for instance, to con- 
ceive of a case where the admission into a neutral port of a war- 
like expedition for the purpose of refitment and coaling would en- 
able it to strike a successful blow at some neighboring possession 
of the other belligerent. Surely in such circumstances the port 
would be a base of operations, even though the belligerent flag was 
seen in it on no other occasion during the war. The phrase we are 
considering is often used in connection with such matters as the 
supply of arms and ammunition, the recruitment of men, and the 
addition of equipments of war. But these things were prohibited 
definitely and directly long before the phrase was introduced, and 
it cannot be regarded as prohibiting them all over again indefi- 
nitely and indirectly. It is suggested that the words should be 
used to cover cases where acts which neutrals need not prohibit 
when done to a slight extent or for a short time, have taken 
place on such scale or for so long a time as to turn them inio 
occurrences highly beneficial to the belligerent in pursuit of his 
warlike ends. For instance,, a brief visit to a neutral port is quite 
allowable, but a lengthy stay for purposes of rest and refitment 
should be forbidden; or a prize may be taken in and kept for 


a short period, but if the port is filled with prizes and they are 
left in safety there for an indefinite time, it should be regarded 
as a base of operations." 1910 edition (p. 618). 

General responsibilities. — The responsibility for acts 
which are legitimate only in the time of war rests upon 
the belligerent who commits the act. The acts of war 
must be within the rules recognized as regulating the 
conduct of hostilities. For acts not conforming to these 
rules the one violating the rules assumes the responsibil- 
ity. This principle is definitely announced in the first 
article of the Hague Convention concerning the Rights 
and Duties of Neutral Powers in Maritime War which 
states that " Belligerents are bound to respect the 
sovereign rights of neutral pow T ers." 

The responsibility for acts generally legitimate both 
in time of peace and in time of war is determined by the 
act and the conditions under which it occurs. Entrance 
of a belligerent vessel to a neutral port with the purpose 
of departing within the time fixed by the neutral state 
would be legitimate so far as the belligerent and neutral 
states are concerned and a sojourn for a longer period 
on account of stress of weather might be equally legiti- 
mate. Sojourn by a belligerent vessel for a period 
longer than that allowed and without such reason, if un- 
known to the neutral, would be a violation of neutrality 
and the responsibility would rest upon the belligerent. 
Such sojourn with the knowledge and consent of the 
neutral would transfer the responsibility to the neutral 

For the commission of acts legitimate in the time of 
peace but not legitimate within neutral jurisdiction in 
time of war the neutral state is responsible so far as the 
manifest neglect of the neutral state to exercise " due 
diligence " makes the acts possible. 

Privileges and obligations of belligerents. — The gen- 
eral practice of permitting ships of war of belligerents 
to enter neutral maritime jurisdiction gives to the ves- 
sels certain privileges. The permission to enter would 


be an empty one if the vessel should be necessarily in 
a less favorable condition on departure than before en- 
trance, i.e., if a vessel enters and is allowed to purchase 
no supplies whatever the stock would be depleted by 
the amount consumed during the sojourn. The privi- 
lege of entrance would seem reasonably to carry with 
it the privilege of maintaining the vessel in a state of 
general efficiency at least equal to that existing at the 
time of entrance. On the grounds of humanity and in 
accordance with precedents, still further privileges have 
ordinarily been afforded. These have varied at dif- 
ferent times and in different states. The privileges 
granted must not be such as to involve participation in 
the hostilities for this Avould violate the accepted prin- 
ciples of lawful neutral conduct. 

The belligerent is under obligation in turn to respect 
the neutral jurisdiction. As the neutral state admits 
the belligerent vessel as a privilege, the belligerent 
should avoid acts which would partake of the nature 
of hostilities or be in disregard of the regulations of 
the neutral. 

Duty of belligerents. — The Hague Convention XIII, 
concerning the Eights and Duties of Neutral Powers 
in Maritime War places the primary obligation upon 
the belligerent. In article I is the following state- 

Belligerents are bound to respect the sovereign rights of neutral 
Powers and to abstain, in neutral territory or neutral waters, 
from all acts which would constitute, on the part of the neutral 
Powers which knowingly permitted them, a non-fulfilment of their 

This position sustains the contention that the burden 
of war should so far as possible be borne by the belliger- 
ent. The need for regulations had been seen in the 
diversity of practice in recent wars. The form of article 
I follows closely the draft of the proposition originally 
submitted by Great Britain. 


Admission of private vessels- — The admission of pri- 
vate vessels is generally without restriction, save neces- 
sary port regulations. The admission of a private vessel 
is usually assumed to be of advantage to the state receiv- 
ing the vessel and to the vessel. The right of entrance 
subject to necessary port regulations may be said to be 
admitted in the family of nations. The private vessel 
would be subject to such restrictions as may be estab- 
lished; otherwise the vessels would be unrestrained. 
These restrictions might be somewhat more numerous in 
time of war than in time of peace, but, in general, to 
private vessels acts not prohibited may be regarded as 

Exclusion of vessels of war. — The admission of a bel- 
ligerent vessel of war to a neutral port or waters is, in 
general, not for the benefit of the neutral state. It is now 
usual for a neutral state to prescribe the conditions of 
admission and of sojourn. In some instances belligerent 
ships of war are excluded as in the case of the Nether- 
lands proclamation of July 30, 1914 : 

Article 2. As long as the Order mentioned in Article I (Royal 
Order of October 30, 1909) is not in force, it is forbidden to war 
ships or similar vessels of foreign powers to enter the Netherlands 
territorial waters from the sea or to remain therein. 

Other states have made regulations varying in charac- 
ter. Nearly all states assume the right to exclude foreign 
vessels of war from certain maritime areas and to regu- 
late the action of foreign vessels of war in all areas. 

The acts which may be allowed to a belligerent vessel 
of war within neutral jurisdiction are usually enumerated 
and acts not permitted are generally regarded as pro- 
hibited. v 

As the basis of regulation of the admission and con- 
duct of private vessels and vessels of war differs, the 
regulations would naturally differ. The regulations for 
the admission of vessels of war are now regarded as 
proceeding from a generally accepted right of absolute 


prohibition. To endeavor to make the regulations for 
both classes of vessels the same would lead to unnecessary 

Enumeration of acts which should be prohibited to bel- 
ligerent vessels would be manifestly impossible as these 
will vary. 

The general principle is that action friendly and not 
involving participation in war will be allowed and that 
the burden of the war should not be unnecessarily thrown 
upon the neutral. A neutral state is not obliged by the- 
existence of war between two states with which it is on 
terms of friendship to break off relations with those 
states but merely to refrain from participation in the 
contest by aiding one against the other. As regards- 
maritime relations aid would be afforded if the neutral 
octed in such manner as to increase the fighting efficiency 
of either belligerent or if it allowed either belligerent 
to use the protection of the neutral jurisdiction to this 
end. A neutral state is under no obligation to endeavor 
to prevent acts within its jurisdiction which if having 
any relation at all to hostilities is only remote, e.g., in- 
nocent passage through its waters. On the other hand: 
the obligation is clear where relation to the hostilities is 
proximate, e.g., fitting out and arming a vessel. Action 
other than permitted within neutral jurisdiction would 
constitute a violation or neglect to fulfill the obligations, 
of neutrality. If committed by the belligerent without 
the knowledge of or in a manner beyond the control of 
the neutral, the responsibility would rest primarily upon 
the belligerent. If committed with the knowledge of' 
and within the power of control of the neutral, there 
would be a nonfulfillment of neutral obligations and the 
responsibility would rest on the neutral state. 

Ideas of neutral base. — Article 5 of the Hague Con- 
vention concerning the Rights and Duties of Neutral 
Powers in Maritime War forbids belligerents the use of* 
neutral ports or waters as a base of naval operations, 


against their adversaries. This same article specifies one 
particular use, viz, the erection of radio stations or any 
apparatus for the purpose of communication with bellig- 
erent forces on land or sea. Article 8 places the neutral 
government under obligation to prevent the fitting out or 
a ruling of any vessel designed to carry on war against a 
state with which the neutral state is at peace. Article 
12 provides against long sojourn of belligerent ships in 
neutral ports. Article 17 limits repairs to belligerent 
ships of Avar to those necessary to render the ships sea- 
worthy. Article 19 forbids the use of neutral waters for 
replenishing or increasing war material, armament or 
crews. Limitations upon supplies of food and fuel are 
imposed in article 19, and article 20 provides as to the 
frequency of taking such supplies. Article 25 provides 
for the enforcement of these rights of a neutral state by 
" the means at its disposal." Such acts as those above 
mentioned have been named by some as constituting 
neutral waters as a base. 

The opinion has been frequently expressed that re- 
peated use is necessary to constitute a place within 
neutral jurisdiction a base of operations. 

This opinion is expressed by certain of the writers on 
international law particularly during the last quarter of 
the nineteenth century. It also appears in some state 

Base in neutral jurisdiction, definition. — Often the idea 
has been expressed that it is necessary that the use of a 
neutral port or waters be repeated use in order to consti- 
tute a base. It is evident that frequent or repeated use 
would be one of the clearest evidences of the use of a 
port as a base. A single use of a port might, however, 
constitute the port a base provided this use were in 
excess of or in contravention of permitted use. It is 
now generally admitted that a belligerent is bound not 
to use neutral waters except as permitted and that the 
neutral state is bound to use the means at its disposal 


to prevent such unpermitted use. These general rules 
indicate the principle which underlies the idea of base, 
viz, use beyond that permitted to the belligerent and giv- 
ing rise to an obligation on the part of the neutral state 
to use the force at his disposal to prevent. It is not for 
the belligerent to judge what should be permitted; it is 
the duty of the belligerent to refrain from acts which 
are not permitted by the laws and proclamations of neu- 
trality. It may be said that in time of war the use of 
neutral ports or waters other than permitted by laws and 
proclamations constitutes such ports or waters a base. 

A base within neutral jurisdiction is therefore a place 
which is used by a belligerent in a manner not permitted 
by law. 

Franco-Prussian War, 1870. — There was much uncer- 
tainty in 1870 in regard to the proper regulation of neu- 
tral conduct. The arbitral award in the Alabama case 
later threw some light upon certain points in regard to 
neutral obligation. The proclamation issued by Presi- 
dent Grant in October 1870 was quite comprehensive and 
has been the basis of subsequent proclamations. (For 
full text see International Law Situations, 1904, p. 68.) 
The reasons why this proclamation was so definite in 
regard to the use of American ports and waters may in 
part be seen from the letter of the British Minister of 
October 10, 1870. 

Washington, Oct. 10, 1870. 

My Loed : I have the honour to inclose a copy of a Proclama- 
tion which was signed by the President of the United States on 
the 8th instant, and published yesterday, as to the manner in 
which, with reference to the war now existing between France 
and the North German Confederation and its allies, the armed 
vessels of either belligerent, whether public ships or privateers, 
are to be treated in the ports of the United States. The contents 
of this Proclamation are in many respects similar to the orders 
recently given by Her Majesty's Government with respect to the 
treatment of such vessels in British ports. 

It would seem that the issue of this document has been insti- 
gated by the recent conduct of French vessels of war in the neigh- 


bourhood of the port of New York. It is said that French gun- 
boats have lately moored about the entrance of that port, and 
have sometimes been anchored outside, within three miles of the 
coast, for the purpose of intercepting any North German vessels 
which might leave New York, and particularly the German steam- 
ers, which, in consequence of the termination of the blockade of 
the German ports, have renewed their voyages. On one occasion 
the French gunboat " Latouche Treville " steamed up the Bay of 
New York, round the steamer " Hermann ", went out again, and 
anchored outside. 

A French frigate and two smaller vessels of war arrived lately 
at New London in Connecticut, on the pretext of requiring repairs ; 
they remained there for some days, although they only had to 
repair some spars, which could have been done nearly as well at 
sea as on shore. From that point notice could be given of the 
sailing of German vessels from New York, and men-of-war sta- 
tioned at New London could easily have intercepted them. 

Mr. Fish told me that he had represented to the French Minister 
that, although he could not positively allege a violation of inter- 
national law, he considered that the proceedings of belligerent 
vessels of war in hovering about the entrance of a neutral port, 
and, as it were, blockading it, and making the neighbourhood a 
station for their observations, were contrary to custom, and 
were unfriendly and uncourteous to the United States. Mr. Fish 
added that M. Berthemy had written upon the subject to the 
French Admiral, who, in reply, had denied the fact of hovering 
about the port, or of using the neighbourhood as a station of 
observation ; but confessed that the proceeding of the " Latouche 
Treville " in entering the port of New York for the purpose of 
observing the steamer " Hermann " was improper, and that her 
commander had consequently been severely reproved. 

My Prussian colleague, in expressing his satisfaction at the issue 
of the inclosed Proclamation, has made observations which lead 
me to suppose that he imagines that by its provisions merchant- 
ships are prohibited from exporting arms and ammunition from 
the ports of the United States for the use of the belligerents, and 
I fear that he may have telegraphed in that sense to his Govern- 
ment; but though I did not feel called upon to question Baron 
Gerolt's view of the case, I can find no expressions in the Procla- 
mation to justify such an interpretation ; indeed, Mr. Fish denies 
that it was intended to convey any such meaning. 

I have, etc. 

Edw. Thornton. 
{Das Staatsarchiv. vol. 20, p. 351.) 
3628—34 3 


Secretary Fish, in a letter to Minister Washburne at 
Paris, said : 

Department of State, 
Washington, October 4, 1870. 

This Government desires and intends to maintain a perfect and 
strict neutrality between the two powers now unfortunately en- 
gaged in war. It desires also to extend to both the manifestation 
of its friendly feeling in every possible way, and will allow to 
the vessels of war of each power, equally, the hospitality of its 
ports and harbors for all proper and friendly purposes. 

But this hospitality is liable to abuse, and circumstances have 
arisen to give rise in the minds of some persons to the apprehen- 
sion that attempts at such abuse have taken place. 

I am not in possession of facts to justify me in saying that 
such has been the case, but I have deemed myself justified in 
calling the attention of M. Berthemy, the French representative 
at this capital,, to the current rumors, sustained as they are by 
the presence of a number of French vessels upon the coast of the 
United States. These vessels have appeared at or near the en- 
trance of the harbor of New York, off Sandy Hook; at the 
entrance of the Long Island Sound ; at or near the entrance of 
the Chesapeake Bay. One or more is represented to have been 
anchored not far from Sandy Hook (the main entrance to New 
York Harbor,) and there is a difference of statement as to the 
precise distance at which she lay from the shore; some claiming 
that she was within a marine league. But of this there is no 
positive evidence. She has entered the port of New York (as 
claimed by some) for the purpose of watching a German steamer 
about to sail thence. Three of them have put into the harbor of 
New London (which looks out upon Long Island Sound, the 
eastern entrance to the New York Harbor) avowedly for some 
small repairs ; one recently asked permission, which was granted, 
to make some repairs at the Norfolk navy yard, near the entrance 
of Chesapeake Bay. 

All this may be consistent with an intention of perfect observ- 
ance of the neutral character of our waters and jurisdiction, and 
with an entire absence of undertaking any hostile movement 
against the vessels of North Germany, from those waters, or that 

A large trade has been carried on from the ports of the United 
States, approached by the waters in which these vessels have thus 
appeared, by vessels belonging to North Germany. 

The appearance of French vessels in these immediate neighbor- 
hoods, in such numbers and force, does not fail to excite the 


alarm of these vessels, and must have the effect to a greater or 
less degree to diminish that trade. 

The United States are not prepared at present to say that any- 
actual violation of international law has been committed, or that 
the hospitality of these waters has been positively abused. But 
the hovering of the vessels of war of a belligerent on the coasts 
near the entrance of the principal ports of a friendly power does 
interfere with the trade of the friendly power. 

The interruption of the regular communication with you, by 
reason of the investment of Paris, has led me to represent to 
M. Berthemy our views on this subject, and to say that, although 
the vessels of either belligerents may not actually shelter within 
the jurisdiction of the United States and proceed thence against 
the vessels of its enemy, this Government would regard as an 
unfriendly act the hovering of such vessels upon the coast of the 
United States, near to its shores, in the neighborhood of its ports, 
and in the track of the ordinary commerce of these ports, with 
intent to intercept the vessels of trade of its enemy. 

I have requested M. Berthemy to make known these views to 
the French government, and to express the confident hope of the 
President that there may be no cause of complaint on the part of 
this Government by reason of any such hovering by the vessels 
of the French government. 

You will be pleased to take an early opportunity to present the 
same view to the minister for foreign affairs, which you may do 
by reading to him this dispatch. 

Hamilton Fish. 

(1870, Foreign Relations. U. S., p. 70.) 

Japanese neutrality, 1870. — The fact that there were 
special privileges accorded to certain European powers in 
the maintenance of ships of war in Japanese waters for 
protection of Europeans in the years before 1870 gave 
rise to complications on the outbreak of war. Japan- 
issued a proclamation of neutrality, as follows: 

Proclamation of Neutrality. 

Information having been received that war has broken out be- 
tween Prussia and France, his Majesty the Emperor has declared 
his resolve to maintain strict neutrality, and he has therefore 
directed that the following regulations shall be made known, not 
only at the open ports, but also at all towns on the sea-coast* 
so as to prevent untoward consequences. 


Article I. The contending parties are not permitted to engage 
in hostilities in Japanese harbors or inland waters, or within a 
distance of three ri from land at any place, such being the dis- 
tance to which a cannon ball can be thrown. Men-of-war or mer- 
chant vessels will, however, be allowed free passage as heretofore. 

Article II. Any vessel belonging to either of the contending par- 
ties, whether men-of-war or merchant vessels, shall be impartially 
supplied with wood, water, and provisions at the open ports, or 
other sea-ports of Japan in the same way as notified before, and 
shall receive assistance in case of distress. 

Article III. If ships of war belonging to both parties shall 
enter the same port, the ship belonging to one party will not be 
allowed to sail until twenty-four hours after the departure of 
the other. 

Article IV. Some countries have troops stationed at one of the 
open ports, their men-of-war are allowed to anchor there, and a 
marine camp has been formed; but this permission has been 
granted solely for the ordinary protection of their subjects resi- 
dent at the port in question, and not for any purpose connected 
with foreign wars. These quarters must not be used in further- 
ance of any expedition against the enemy, and unconnected with 
their ordinary use. 

Article V. Japanese vessels are prohibited from carrying troops, 
arms, or munitions of war for the service of either of the hostile 

Article VI. All persons, with the exception of pilots, who shall 
take service on board of ships of war of either of the contending 
parties, will do so at their own risk and peril. 

Article VII. The sale of prizes in a Japanese harbor is pro- 
hibited. In case, however, it should become necessary to dispose 
of a prize in a Japanese harbor, permission should be applied for, 
and question decided in consultation with the diplomatic repre- 
sentative of the nation to which the captor belongs. 

Article VIII. With regard to other articles of import and ex- 
port the same rules are to be observed as hitherto. 

Article IX. In case any of the provisions of the above regula- 
tions which relate to foreigners should be infringed, steps should 
be taken to put a stop to such acts by application to the consul of 
the party concerned, if committed at the open ports. If represen- 
tations to the consul are of no effect, application should be made 
to the Japanese men-of-war stationed there to take the necessary 
steps. If a breach of these regulations be committed at a non- 
treaty port, the local authorities should inform the authorities at 
the nearest open port, and also the Japanese men-of-war. In the 
case of remote places, notice should be sent direct to the war and 
foreign offices. 


The above regulations must be carefully attended to by the 

authorities of the open ports, and of the seaboard Fu, Han, and 



August, 1870. 

(1870, Foreign Relations, U.S., p. 188.) 

Practice of intervention. — During the period before 
1830 there had been in general a favorable attitude to- 
ward intervention in affairs of weak states, and the more 
powerful states had found no difficulty in persuading 
themselves of the necessity for " interfering," " inter- 
meddling," or intervening in the affairs of weaker states. 

During the last 100 years there has been a growing 
opinion favorable to nonintervention, though Gericke 
(De jure interventions) , in 1834, looking back upon the 
period of 45 years since the French Revolution found 
ample examples supporting the view that intervention 
was the normal conduct in international relations. 

There have been many interventions since 1834 in 
many parts of the world. - The United States has fre- 
quently intervened for varying reasons, and in a single 
year in countries in the Mediterranean, South America, 
and the Pacific Ocean. Revolutions in less advanced 
states have been numerous and have made it necessary 
that the more powerful states protect their own citizens 
at least. The grounds of intervention have ranged from 
self -protection to so-called " treaty obligations." 

Early doctrines of intervention are being revived by 
modern propositions in regard to the maintenance of 
world peace. States outside a dispute are presuming to 
determine in advance and without invitation how the 
issue of the dispute shall be regarded. In some of these 
instances reversion to the attitude of 200 years ago seems 
to be prevalent. 

Though the topic of intervention has been much dis- 
cussed there are still wide differences of opinion as to 
whether a right of intervention can be maintained. The 
reason for some of the differences of opinion is the differ- 
ence in defining intervention. Early definitions usually 


regarded intervention as interference in the internal af- 
fairs of one state by another state, or the interference 
by a third state in the relations of two other states with- 
out the consent of either. Some later writers have em- 
ployed the word to define interference which is primarily 
to secure observance of international obligations, thus 
transferring the ground from internal to external affairs. 
This would involve opposing or preventing action by a 
state which would imperil the rights of another state as 
a, sovereign political unity. Others deny that such ac- 
tion on the part of a state as is essential to the mainte- 
nance of its independence or of the independence of 
another state in the community of nations is in any 
sense intervention, but affirm that this action is merely 
self-defense or maintenance of the obligations due to 
members of the community of nations among themselves. 
Such action is sometimes collective or, if not, is construc- 
tively in the nature of unselfish effort in behalf of the 
community. The growing interdependence of states as 
of individuals within states requires a greater degree 
of cooperation among states, and many modifications of 
the range of activities within which entire freedom may 
be exercised. These changes would not be extensions of 
the field of intervention but rather extension of the field 
within which each state may lawfully act and defend its 
right to act. The distinction between intervention and 
maintenance of rights is not always easy to make in prac- 
tice. As the word intervention is used in time of peace, 
it seems, to indicate (1) interference by one state in the 
internal affairs of another, (2) interference by a state 
in the relations between two other states, and (3) meas- 
ures taken by a state to maintain international rights 
or what it may claim to be international rights. 

Belligerent vessels and neutral ports. — The entrance 
of armed forces of one state upon the land of another 
state has long been prohibited both in time of peace and 
in time of war. The entrance of naval forces of one 
state into the waters of another state in time of peace is 


usually subjected to few restrictions and in time of war 
is ordinarily permitted under stated restrictions. It has 
been generally maintained that the belligerent should not 
throw upon a neutral, which desires to have no part in 
the war, burdens for the conduct of the war. This is 
evident in the first article of XIII Hague Convention, 
1907, concerning the Rights and Duties of Neutral Pow- 
ers in Naval War which states that " Belligerents are 
bound to respect the sovereign rights of neutral powers," 
and to refrain from all acts which if knowingly per- 
mitted by the neutral would constitute a nonfulfillment 
of its neutrality. The duty rests upon the belligerent 
and it is the right of the neutral to demand that the 
belligerent observe the obligations to which it is bound. 
This principle is international law as well as also ex- 
plicitly set forth in the Convention. 
The preamble of this Convention affirms that it is — 

for neutral Powers, an admitted duty to apply these rules im- 
partially to the several belligerents. 

Article 2 provides, 

Any act of hostility,* including capture and the exercise of the 
right of search, committed by belligerent war-ships in the terri- 
torial waters of a neutral Power, constitutes a violation of 
neutrality and is strictly forbidden. 

Article 25 reciprocally places certain obligations upon 
the neutral, the performance of which under article 26 
would not be considered unfriendly: 

Article 25. A neutral Power is bound to exercise such surveil- 
lance as the means at its disposal allow to prevent any violation 
of the provisions of the above Articles occurring in its ports or 
roadsteads or in its waters. 

Article 26. The exercise by a neutral Power of the rights laid 
down in the present Convention can under no circumstances be 
considered as an unfriendly act by one or other belligerent who 
has accepted the Article relating thereto. (36 U.S.Stat., p. 2415.) 

This XIII Hague Convention is one of rights and duties 
and an impartial application of the rules is implied. 


One of the preliminary questions is whether belligerent 
ships of war should be allowed to enter neutral waters. 
This gives rise to the question as to what constitutes 
neutral waters. In a general way it may be said that 
the expression " neutral waters " is a term which covers 
all the maritime area over which the neutral state is 
entitled to exercise jurisdiction. This area would include 
the marginal sea as well as ports, roadsteads, and inland 

It is evident that the responsibility of a neutral state 
would differ in degree according to the area. It could 
be fairly affirmed that the responsibility within a port 
could be regarded as more complete than one on a remote 
coast or near the outer line of the marginal sea, a point 
which might not always be easy to determine. 

Article 32 of the original British proposition at The 
Hague, 1907, aimed to recognize the difference of obliga- 
tion by stating that the articles of the proposed rules 
should not be interpreted in such manner as to prohibit 
the simple passage of the ships of war or of auxiliary 
ships of a belligerent through neutral waters. In the dis- 
cussion of this proposition the Turkish delegate said 
that his government could not sign an engagement which 
would limit its control of the Dardanelles and Bosphorus. 
There had previously been a proposition that straits con- 
necting open seas should never be closed. 

The Danish delegate explained his idea in regard to 
straits, saying : 

The amendment which the Danish delegation has taken the 
liberty of proposing to Article 32 of the British project limits 
the simple right of passage of war-ships and auxiliary vessels of 
a belligerent to the territorial waters uniting two open seas. 

The Danish delegation, in presenting this amendment, was in- 
spired mainly by the following reasons : 

Recognition of an unlimited simple right of passage for bellig- 
erent war-ships can hardly be reconciled with the neutral's right 
to close interior waters for the purpose of defending his neu- 
trality — notably bodies of water with two entrances — which offer 


a belligerent fleet special opportunties as a base of operations, 
as well as for certain acts that are unlawful in neutral waters. 

In granting belligerents the simple right of passage through 
territorial waters, and at the same time allowing neutrals to 
prevent admission to these w r aters, we would be taking away with 
one hand what we had given with the other. 

As the laying of submarine mines by neutrals comes within 
the jurisdiction of another Commission, I cannot enter into the 
details of that question. 

I only want to bring out the connection between the two ques- 
tions and the desirability of not restricting by convention the 
exercise of a neutral's sovereign rights over his territorial waters 
in such a way as to deprive him of the most effectual means he 
has of enforcing the important prescriptions of this same con- 
vention. ( Proceedings of The Hague Peace Conferences, Carnegie 
Endowment for International Peace, vol. Ill, p. 599.) 

The regulation finally took a purely negative form as 
article 10. 

The neutrality of a Power is not affected by the mere passage 
through its territorial waters of ships of war or of prizes belonging 
to belligerents. 

Such a regulation may still leave the neutral state free 
to determine what action would involve more than simple 
passage through neutral waters. 

It is generally admitted that there will be maritime 
areas within which belligerent ships of war will not be 
allowed to pass. Such areas have been specified from 
time to time in neutrality proclamations or otherwise. 
There seems therefore to be a general tendency to admit 
in practice the principle that while the waters of a 
neutral state are usually open to belligerent ships of war 
certain areas may be closed by general proclamation or 
by notification at the place. 

Russo-Japanese War, 1905. — During the Russo-Japa- 
nese War, 1904M35, there were many examples of acts 
by belligerents which under ordinary conditions would 
be regarded as in violation of neutrality. Belligerent 
acts in Korea and in Manchuria were in an area techni- 
cally neutral. 


Admiral Togo, of the Japanese Navy, reported as fol- 
Jows in regard to the Russian destroyer Ryeshitelni in 
the neutral port of Chefoo : 

According to the report from Commander Fujimoto, Commander 
of the First Torpedo-destroyer Flotilla, regarding the capture of 
the Russian destroyer Ryeshitelni at Chefoo, the Japanese de- 
stroyers Asashhvo and Kasunvi, under the command of Com- 
mander Fujimoto,, were searching for the enemy's warships on 
the night of the 10th inst. when one of the latter was sighted 
steaming westward. Our destroyers at once pursued the enemy, 
but the latter disappeared from view in the darkness of the 
night. A further search the following day (the 11th inst.) re- 
vealed the fact that the enemy's vessel had taken refuge in 
Chefoo harbour. Our destroyers accordingly remained outside the 
neutral zone, and waited for the Russian warship ; but the enemy 
did not come out from the harbour. 

On entering the port on the night of the 11th inst., our de- 
stroyers ascertained that the enemy's warship was the destroyer 
Ryeshitelni. It was also found that she had not been disarmed, 
but had taken in coal, all the officers and men remaining on 
board. At 3 p.m. on the 12th inst., Lieutenant Terajima of the 
Asashiwo, accompanied by ten petty officers and men, was des- 
patched on board the enemy's destroyer, for the purpose of in- 
forming the captain of the Russian destroyer that our vessels 
had traced and watched him, and that, as he had entered the 
harbour at 4 a.m. the previous day and had not yet left it, he 
was offered an alternative either to issue from the harbour in one 
hour or surrender, the refusal of which would result in our 
disposal of the Russian destroyer at our will. The enemy, how- 
ever, not only refused our demand, under various pretexts, but 
inflicted outrages by force on our officers and men. All of the 
Russians then jumped into the sea, meanwhile blowing up the 
fore part of the ship, whereupon we at once captured the de- 
stroyer and left the harbour at 5.15 p.m. with the vessel in tow. 
A Russian on board was taken prisoner. (S. Takahashi, Inter- 
national Law applied to the Russo-Japanese War, p. 437.) 

According to the opinion of Professor Takahashi, who 
had been legal adviser to the Japanese fleet in the Chino- 
Japanese War and later a member of the legal committee 
of the Department of Foreign Affairs, the action in the 
case of the Ryeshitelni was justified. He says : 


In the presence of this clear and distinct invasion of the neu- 
trality of China by Russia and the failure of China to take any 
steps to prevent an infringement of her neutrality, the Japanese 
Government were fully justified in adopting such measures of 
self -protection as might seem necessary to them. They could not 
say that the unlawful acts of Russia and the supineness of China, 
working together, should be permitted to operate Jo the prejudice 
of their rights and interests. It is not alone in the matter of the 
Ryeshitelni that there has been a violation of the neutrality of 
Chefoo. In installing a system of wireless telegraphy between 
Port Arthur and the Russian Consulate at Chefoo there was a 
no less flagrant disregard of China's neutrality, and notwith- 
standing the repeated protests of the Japanese Government, China 
permitted the system to continue in operation. The Japanese 
Government had every wish and intention to continue to respect 
the neutrality of China outside those regions occupied by Russia 
so long as Russia did the same. But it is hardly to be expected 
that they would allow their enemy to escape the consequence of 
the war by disregarding China's neutrality. (Ibid., p. 441.) 

General discussion at The Hague, 1907. — At the Hague 
Conference in 1907 the question of elaborating a conven- 
tion relating to the conduct of ships of war in neutral 
ports was recognized as complex and difficult, but none 
the less essential. As the President of the committee, 
Count Tornielli, said : 

It is indeed a useful thing to make certain common rules more 
precise, but only on condition that in seeking an agreement upon 
this subject the fact is not lost sight of that the legislative inde- 
pendence of the several countries must not be unduly hampered. 

The logical deductions from the immutable principle of national 
sovereignty seem considerably to simplify our task. If they 
prevail, our only reply to the question that has been put to us 
could be included in four precepts, upon which it should not be 
difficult to reach an agreement. 

These precepts may be formulated thus: 

(1) Mutual recognition by the contracting Powers of their 
legislative independence in the matter of respect for neutrality. 

(2) Impartial application to all belligerent parties of the laws 
which the several States have enacted. 

(3) Mutual renunciation by neutrals of the right to introduce 
changes in their national laws in this respect while a state of war 
exists between two or more contracting Powers. 


(4) Absolute duty of belligerents to respect the laws of 

I should like to see the work which we are about to undertake 
follow these lines. If we are able to advance a little in this 
direction, our time will not have been wasted and what we accom- 
plish will be in the interest of progress. (Proceedings of the 
Hague Peace Conference, Carnegie Endowment for International 
Peace, vol. Ill, p. 573.) 

The British delegate in presenting the somewhat elab- 
orate set of rules in behalf of his Government, said : 

My government has deemed it its duty to propose to the Confer- 
ence the draft regulations which have been filed in its name, be- 
cause it considers that it is of the utmost importance to define 
precisely the treatment which a neutral State may apply to bellig- 
erent vessels in its ports and territorial waters. We owe it to 
neutrals to indicate to what extent they will be permitted, in 
time of war, to give shelter to and to provision vessels of one 
of the belligerents without exposing themselves thereby to justi- 
fiable complaint on the part of the other belligerent. Likewise it 
is no more than just to state the treatment which belligerents 
will have the right to expect from neutrals. Uncertainty in this 
respect can only give rise to misunderstandings and disputes. 
Now, it is indisputable that uncertainty prevails with regard to 
this matter. We need only consult the texts to convince ourselves 
of this. Thus, to cite an instance, it is stated in a number of 
works on international law that the so-called 24-hour rule is 
universally recognized, while we know that several States do not 
recognize this rule, and do not consider themselves bound to 
observe it. (Ibid., p. 575.) 

The Netherlands delegate pointed out the existing 
difficulties confronting a state having remote dependen- 
cies, sayin 

g : 

The delegation of the Netherlands wishes to observe that the 
question which is on the day's order of business is of the utmost 
importance to its Government, which in recent wars has observed 
the most impartial neutrality, but which, because of the colonies 
that it possesses in different quarters of the world and of the 
numerous ports therein, has nevertheless been placed at times in 
& very embarrassing situation. 

The Government of the Netherlands therefore greatly desires 
that all questions which may arise as a result of the stay of 


belligerent warships in neutral ports and waters may henceforth 
be obviated by a common agreement, establishing a system sanc- 
tioned by the rules of conventional law. 

Without taking a stand on all the questions that may come up 
in the course of our debates, I shall confine myself for the time 
being to a general observation. It would seem to me, first of all, 
whatever definitive system may be agreed upon, that the rules 
defining this system should be precise and clear and should not 
leave a loophole for any future ambiguity. 

The neutral must know what he is expected to do. His freedom 
of action must not be restricted without legitimate cause. Bellig- 
erents must be guaranteed perfect equality of treatment. These 
are two cardinal rules which must serve as the basis of a just 
and equitable system. (Ibid., p. 578.) 

The Japanese delegate pointed out certain difficulties 
under the present conditions: 

There are not at present clear and universally recognized rules 
governing the relations between neutrals and belligerents with re- 
gard to the questions that have been laid before us, and history 
teaches us that the divergent and frequently convicting interpre- 
tations and practices adopted in the past by different countries 
have been one of the most fruitful causes of international irri- 
tation and recrimination. It would therefore be desirable to 
remove as far as possible the dangers arising from this state of 

The peaceful acts of neutrals should be respected to the greatest 
possible extent and as far as is compatible with the recognized 
rights of belligerents and should be allowed to proceed without 
being disturbed by war ; but in order to insure the result desired, 
neutrals should see to it, on their side, that their territories and 
territorial waters are not utilized by belligerents as bases for 
the carrying on of military enterprises, so as to furnish cause for 

To further the cause of peace by warding off war, to prevent 
abuse of the hospitality of neutrals by drawing a clear distinction 
between permissible peaceful acts and prohibited military oper- 
ations on the part of belligerents in neutral ports and waters, 
to discourage as much as possible the use of these neutral ports 
and waters for military purposes by means of restrictions acting 
in a way as automatic prohibitions, without affecting in any way 
whatsoever the right and privilege of using these ports and 
waters as places of refuge and for purely humanitarian purposes, 
to protect neutrals in the enjoyment of their rights and. in the 


fulfillment of their duties by specifically defining these rights 
and duties — such is the purpose of the Japanese proposal. (Ibid., 
p. 579.) 

Perhaps M. Louis Renault, the reporter of the subcom- 
mittee having in charge the question of belligerent vessels 
in neutral waters, would be considered as speaking with 
the most general knowledge. He gave careful consider- 
ation to all the proposals and said after the preparation 
of the questionnaire and in his capacity as" a French 
delegate rather than as reporter. 

The exercise of the neutral's right of sovereignty, whose source 
is the common law, must naturally be reconciled with observance 
by the neutral of the duty incumbent upon him not to take part 
in hostilities. Now, as a matter of fact, the positive law of 
nations, as it stands at present, allows neutral States great lati- 
tude in regulating the status of belligerent war-ships in neutral 
ports and waters. This latitude has resulted in giving rise to 
divergences in the laws of the various countries on the subject, 
which divergences show themselves in the declarations of neu- 
trality promulgated by neutrals on the outbreak of war. And 
that is not all. There have been cases where the same country 
has not observed the same rules of neutrality in different wars; 
at times it has even happened that it has changed its rules during 
different phases of the same war. This shows the very great 
uncertainty there is on this subject, a very annoying uncertainty, 
causing misunderstandings, recriminations, and at times calculated 
to lead to disputes. 

Again, it may happen that this or that rule may, under various 
circumstances, favor one of the belligerents, although it was not 
made in his behalf. Geographical or military circumstances may 
create a situation that is to his advantage, without there being 
any intention on the part of the neutral to favor him. The other 
belligerent naturally finds this consequence an annoyance and 
may even be led to lodge a complaint on that score. 

From this point of view it would be very beneficial to settle 
upon uniform regulations which, as they would not emanate from 
any one State, would be observed the more willingly. This gen- 
eral regulation, which is so desirable, would have the effect of 
eliminating causes of complaint which might easily degenerate 
into disputes. 

Such is the ideal, if we can hope to succeed in reaching an 
-.agreement upon aU the points and in concluding a general Con- 

HAGUE KEPORT, 190 7 41 

vention. But if it were merely possible to reach an agreement 
upon a few rules, we would thereby have reduced the uncertainty 
and narrowed the field of possible disputes. It is proper to note, 
in this connection, that as regards the points upon which it has 
been impossible to reach an agreement, the fundamental prin- 
ciple would remain intact and the legislative bodies of the several 
States, as our President has pointed out, would retain all their 
rights. (Ibid., p. 581.) 

The demand for some regulations which should be so 
far as possible uniform was quite general. The inclina- 
tion of the Conference was in the main favorable to clear 
statements in the rules. Naturally it was not possible 
to reach agreement upon all topics. 

Report, Hague Conference, 1907. — In the report of M. 
Louis Renault made to the Hague Peace Conference in 
1907 upon the Convention concerning the Rights and 
Duties of Neutral Powers in Naval War, after comment- 
ing on the accepted principle that " The territory of neu- 
tral States is inviolable ", M. Renault says : 

Generally speaking, it may be said belligerents should abstain 
from any act which, if it were tolerated by the neutral state, 
would constitute failure in its duties of neutrality. It is impor- 
tant, however, to say here that a neutral's duty is not necessarily 
measured by a belligerent's duty; and this is in harmony with 
the nature of the circumstances. An absolute obligation can be 
imposed upon a belligerent to refrain from certain acts in the 
waters of a neutral state; it is easy for it and in all cases 
possible to fulfill this obligation whether harbors or territorial 
waters are concerned. On the other hand, the neutral state 
cannot be obliged to prevent or check all the acts that a belliger- 
ent might do or wish to do, because very often the neutral state 
will not be in a position to fulfill such an obligation. It cannot 
know all that is happening in its waters and it cannot be in 
readiness to prevent it. The duty exists only to the degree that 
it can be known and discharged. (Proceedings of The Hague 
Peace Conferences, Carnegie Endowment for International Peace, 
vol. I, p. 291.) 

The report prepared by Mr. Renault referring to 
article 5 which prohibits the use of neutral waters as a 
base of operations, and recognizing that this article is 


based on the second rule of the Treaty of Washington, 
says : 

While the principle is easily stated, its applications require 
much care. We limit ourselves to giving one example by pro- 
hibiting a belligerent to erect on neutral territory a wireless 
telegraphy station or any apparatus for the purpose of com- 
municating with a belligerent force on land or sea. The same- 
provision occurs in the draft Regulations respecting the rights 
and duties of neutral States in war on land. The two provisions 
correspond exactly, for communication may be made from neutral 
territory either with an army or with a fleet. 

We cannot expect to prevent the captain of a belligerent ship 
from communicating with the inhabitants or the consul of his 
country, or from using telegraph or telephone cables of the 
neutral country. There is a formal provision to this effect in 
Article 8 of the draft regulations on land warfare already re- 
ferred to. It was suggested that we forbid making a neutral 
port a place for concentration or rendezvous. But it is hard to 
define what this would mean, and it would be almost impossible 
for neutral States to deal with the intention which brings a 
belligerent vessel into their waters. The interest in this question 
will be greatly diminished by the fixing of the maximum number 
of belligerent ships that may stay in a port at the same time. 
(Ibid., p. 293.) 

The Tinos, 1917. — The German vessel Tinos and other 
vessels seized in the waters of Greece in September 1916 
were declared good prize by the French Court in Novem- 
ber 1917. It was argued for the Germans that the waters 
of Greece were at the time of the seizure of the vessels 
neutral waters. The French court considered that 
Grecian territory had already been used by the German 
forces in contravention of the laws of neutrality and had 
in consequence become an area of hostilities and lost its 
neutral status as regards the specific seizures before the 

Considerant, dans ces conditions, que, sans avoir a apprecier ici, 
du point de vue de la neutrality, Tattitude du governement royal 
alors au pouvoir en Grece, il suffit de constater qu'en fait la 
succession d'actes d'hostilitSs accomplis par les ennemis dans les 
eaux et le territoire de la Grece a transform e" ceux-ci en un 
theatre de la guerre et leur a enleve de facto le benefice d'une 


neutrality que les navires eunemis pretendraient vainement in- 
voquer aujourd' hui. (Journal Officiel, 9 January, 1918, 401.) 

Cases are possible in which a part, or the whole of the terri- 
tory of a neutral State falls within the region of war. These 
cases arise in wars in which such neutral territories are the 
very objects of the war, as were Korea (then an independent 
State) and the Chinese province of Manchuria in the Russo- 
Japanese War; or when a neutral State, either deliberately, or 
because it has not at its disposal sufficiently strong naval forces, 
does not prevent a belligerent from committing hostilities in its 
territorial waters and making them a basis for military operations 
and preparations. These territorial waters become in conse- 
quence a part of the region of war, and the other belligerent may 
also commit hostilities there. (2 Oppenheim, International Law, 
4th ed., p. 146.) 

Disturbed conditions in Danzig, 1931. — For several 
years the use of the port of Danzig by Polish warships 
had been a matter disturbing the relations between the 
Free City of Danzig and Poland. The Danzig Govern- 
ment had maintained that Polish vessels of war were 
bound by the same international regulations as foreign 
vessels of war under other flags. 

The report by Danzig in regard to Danzig-Polish rela- 
tions during the 2% months before August 14, 1931, 
states : 

As regards military measures, the Danzig-Polish relations since 
the last session of the Council have been specially aggravated by 
the fact that on July 1st last, after the expiry of the Agreement 
concerning the access of Polish warships to the port of Danzig, 
Poland suddenly and without any special reason sent patrols of 
Polish sailors through the streets of Danzig and thereby created, 
as will readily be understood, great excitement among the Danzig 
population. The latter regarded those measures as highly provoc- 
ative, and the Government of the Free City was obliged to apply 
to the High Commissioner of the League of Nations for a decision 
under Article 39 of the Paris Treaty of November 9th, 1920. 
(Permanent Court of International Justice, series C, no. 55, p. 41.) 

In a report of August 15, 1931, the High Commissioner 
of Danzig says, in part, 

At its meeting on May 22nd, 1931, the Council of the League of 
Nations invited me " to submit a further report on the situation 

3628—34 4 


for the next session of the Council." I accordingly have the 
honour to follow up my report of April 25th, 1931, by submitting 
the present report to the Council : 

On my return to Danzig at the end of May, I soon noted that 
the agitation caused by the deplorable incidents between Danzig 
citizens and Poles which occurred during April and to which I 
considered it my duty to draw the Council's attention in a special 
report had subsided to some extent. Unfortunately, I found that 
the general situation at Danzig was not so satisfactory ; disturb- 
ances owing to party strife were still continuing. During the 
month of June, particularly violent clashes occurred between the 
organizations of the extremist parties even in the centre of the 
town, and, if they had spread, they would have constituted a 
very serious menace to public security. (Permanent Court of 
International Justice, series C, no. 55, 1931. Access to, or Anchor- 
age in, the Port of Danzig of Polish War Vessels, p. 14.) 

The question referred to the Permanent Court of In- 
ternational Justice for an advisory opinion was: 

Do the Treaty of Peace of Versailles, Part III, Section XI, the 
Danzig-Polish Treaty concluded at Paris on November 9th, 1920, 
and the relevant decisions of the Council of the League of Na- 
tions and of the High Commissioner, confer upon Poland rights 
or attributions as regards the access to, or anchorage in, the 
port and waterways of Danzig of Polish war vessels? If so, 
what are these rights or attributions? (Ibid., p. 9.) 

Attitude of Cuba, 19 H. — Cuba, in an early decree in 
the World War on August 10, 1914, stated, "It is for- 
bidden for a belligerent to make use of a wireless- 
telegraphy apparatus belonging to the Government." 

Swiss regulation, 1914. — By an ordinance of August 2, 
1914, Switzerland took action at the beginning of the 
World War to maintain strict neutrality in the use of 
radio. The ordinance was issued in accordance with 
proposals of the military department as follows : 

Article 1. The creation of new radio stations is forbidden on 
all territory of the Swiss Confederation. 

Art. 2. The utilization of radio stations which already exist 
and have obtained a concession is forbidden. The organs of the 
telegraph and telephone administration will render the stations 
incapable of use without delay by removing the receiving ap- 
paratus, if there is any, or the parts indispensable for their use. 


The parts of the apparatus removed are to be preserved by 
the telegraph and telephone administration. 

Art. 3. There are not included in this prohibition stations estab- 
lished by the telegraph and telephone administration, or those 
which have been established for the needs of the army. 

Abt. 4. Violations of the present provisions, if there has been 
a reception or sending of news of any nature whatever, will be 
proceeded against according to the penal provisions established 
against those who spread, intentionally or by negligence, news of 
a military nature. If there has been only the illegal establish- 
ment of a station or the maintenance of an existing station, of 
which it has not been proved that it has been used, the penalty 
will consist in a fine and the station will be immediately closed. 
If there is reason to suspect that the station is intended to be 
used as a means of information for the benefit of a foreign State, 
proceedings for espionage will be commenced. (1916, Naval 
War College, Int. Law Topics, p. 68.) 

Article 14 of the ordinance of August 4, 1914, laid 
down explicit prohibitions as to use : 

It is absolutely forbidden to the belligerent parties to establish 
or use on Swiss territory a radio station or any other installation 
(telephone, telegraph, signal station, optical or other, carrier 
pigeon station, aviation station, etc.), designed to serve as a means 
of communication with the belligerent forces on land or sea or 
to offer facilities for the same in any manner whatsoever. (Ibid., 
p. 73.) 

Action of United States, 19 H. — An Executive order 
of August 5, 1914, provided that — 

" all radio stations within the jurisdiction of the United States 
of America are hereby prohibited from transmitting or receiving 
for delivery messages of an unneutral nature, and from in any- 
way rendering to any one of the belligerents any unneutral service, 
during the continuance of hostilities." (1916, Naval War College, 
Int. Law Topics, p. 87.) 

A further order of September 5, 1914, was concerned 
with high-powered stations capable of trans-Atlantic 
transmission and it was provided that these "shall be 
taken over by the Government of the United States and 
used or controlled by it to the exclusion of any other 
control." (Ibid., p. 91.) The Secretary of the Navy was 
to enforce these orders. Kadio installations in the Pan- 


ama Canal Zone and waters were to be used only on 
Canal business. (Ibid., p. 99.) 

Colombian attitude, 1914-15. — During the World War 
problems arose as to the use of radio stations already 
established on Colombian territory. One company was 
owned by a belligerent, one station was Colombian prop- 
erty, and one was owned by a neutral company. A res- 
olution of July 14, 1915, provided as to these stations 
which had been the subject of much discussion and 
negotiation since the outbreak of the World War that — 

1. The radio station of Cartagena will continue, subject to the 
measures previously adopted for preventing its use, under the 
inspection and supervision of the official Colombian expert and 
the local political authorities. If these authorities, in accord 
with the expert, consider new orders or new measures necessary 
for the better assurance of the neutrality of the Republic, they 
will decree them on their own authority in urgent cases and in 
ordinary cases will consult this ministry. The home of the 
German employees who previously worked in the station will not 
be troubled, although this home be near the place of the radio 
apparatus, the use of this apparatus continuing to be absolutely 

2. The station of San Andres will remain closed for a time and 
in the manner which will be indicated by the competent ministry. 

3. The station of Santa Marta can continue to exercise its 
rights, but subject always to the departmental and national au- 
thorities ; but it can not have in its service individuals of the 
nationality of any of the belligerents. (1916, Naval War College, 
Int. Law Topics, p. 46.) 

Commission of Jurists, 1923. — The practices and regu- 
lations during the World War showed the need for regu- 
lation. The Washington Conference on the Limitation 
of Armament recommended the appointment of a com- 
mission to consider new agencies of warfare. This Com- 
mission of Jurists, meeting at The Hague, reported Feb- 
ruary 19, 1923, upon rules in regard to radio and in 
regard to aerial warfare. Referring to article 8 of the 
1907 Hague Convention mentioned above,, the Report of 
the Commission says, 


but while article 8 stipulates that a neutral Power is not bound 
to forbid or restrict the use of wireless installations by a belliger- 
ent, and article 9 relates to the restrictive or preventive measures 
taken by a neutral Power for this purpose, measures which must 
be applied impartially to the belligerents, article 4 [of the Com- 
mission's rules following] imposes on neutral Powers the duty 
of preventing the transmission by radio of any information des- 
tined for a belligerent concerning military forces or military 

This article is a compromise. On one side one Delegation 
pointed out that the 1907 system had stood the test during the 
war when neutral Governments had taken under article 9 of 
the 1907 Convention restrictive or preventive measures which 
were quite satisfactory. On the other side it was pointed out 
that those measures had been taken precisely for the purpose 
of complying with the obligation imposed by neutrality, and that 
it would be well to define this obligation so as to help and protect 
neutral Powers in preventing the violation of their neutrality and 
thereby reducing the probability of their becoming involved in 
the war. Agreement was reached on the basis of a text indi- 
cating exactly the character of the messages prohibited, viz., 
messages concerning military forces and military operations. It 
is understood that the prohibition would not cover the repetition 
of news which has already become public. 

It has been agreed that the article does not render necessary 
the institution of a censorship in every neutral country in every 
war. The character of the war and the situation of the neutral 
country may render such measures unnecessary- It goes without 
saying that neutral Governments are bound to use the means at 
their disposal to prevent the transmission of the information in 

The second paragraph merely reproduces the first paragraph 
of article 9 of the Convention of 1907. The phrase "destined for 
a belligerent " covers all cases where the information is intended 
to reach the belligerent, and not merely messages which are 
addressed to the belligerent. 

Article 4. 

A neutral Power is not called upon to restrict or prohibit the 
use of radio stations which are located within its jurisdiction, 
except so far as may be necessary to prevent the transmission of 
information destined for a belligerent concerning military forces 
or military operations and except as prescribed by article 5. 


All restrictive or prohibitive measures taken by a neutral 
Power shall be applied impartially by it to the belligerents. 
(1924, Naval War College, Int. Law Documents, p. 100.) 

Article 5 of the Commission's report here referred to 
is as follows: 

Article 5. 

Belligerent mobile radio stations are bound within the juris- 
diction of a neutral state to abstain from all use of their radio 
apparatus. Neutral Governments are bound to employ the means 
at their disposal to prevent such use. (Ibid., p. 101.) 

Responsibility of a state for radio. — The responsibility 
of Canada for radio was raised in a case which went by 
appeal to the Judicial Committee of the Privy Council. 
The questions shortly stated were: 

(1) Has the Parliament of Canada jurisdiction to regulate 
and control radio communication? (2) If not, in what particu- 
lars is the jurisdiction limited? 

(In re Regulation and Control of Radio Communication in 
Canada. (1932) A.C. 304.) 

In the course of the decision it was said : 

Canada as a Dominion is one of the signatories to the conven- 
tion. In a question with foreign powers the persons who might 
infringe some of the stipulations in the convention would not 
be the Dominion of Canada as a whole but would be individual 
persons residing in Canada. These persons must so to speak be 
kept in order by legislation and the only legislation that can deal 
with them all at once is Dominion legislation. (IMd., 312.) 
* * * The result is in their Lordships' opinion clear. It is 
Canada as a whole which is amenable to the other powers for the 
proper carrying out of the convention ; and to prevent individuals 
in Canada infringing the stipulations of the convention it is 
necessary that the Dominion should pass legislation which should 
apply to all the dwellers in Canada. (IMd., 313.) 

Control of commimications. — In time of war a bellig- 
erent may control communications within its own area 
to the extent which it deems essential with due regard 
for its obligations under international law and treaties. 
This right has led to various degrees of censorship in 
recent years and to the resort to practices of doubtful 


legality. Even in the Spanish-American War, 1898, the 
United States maintained the right to prohibit all cipher 
messages regardless of source or destination. 

The control of communications by neutrals must neces- 
sarily be commensurate with neutral responsibility, but 
the 1907 Hague Convention respecting the Eights and 
Duties of Neutral Powers and Persons in Cases of War 
on Land in article 8 states that : 

A neutral Power is not called upon to forbid or restrict the use 
on behalf of the belligerents of telegraph or telephone cables or 
of wireless telegraphy apparatus belonging to it or to Companies 
or private individuals. (1908, Naval War College, Int. Law 
Situations, p. 190.) 

Neutral powers did, however, restrict the use of radio 
by belligerents in the World War, 191^-18. 

Basic considerations. — The Xane may follow the 
Young into port of B. Under normal conditions it must 
refrain from acts which, if knowingly permitted by B, 
would constitute a nonfulfillment of neutrality — specifi- 
cally, such as capture or visit and search, or pursuit in 
the technical sense. 

Under abnormal conditions, when the neutral state is 
admittedly unable to maintain its neutrality, a belliger- 
ent must take such measures as are essential to security 
of its forces, as being the only competent authority in 
the area. 

The Nine-Power Treaty of the Washington Confer- 
ence, 1921-22, envisages the mutual obligation of the 
belligerent to respect, and of the neutral to maintain, 
neutrality : 

Article! VI. The Contracting Powers, other than China, agree 
fully to respect China's rights as a neutral in time of war to 
which China is not a party ; and China declares that when she is 
a neutral she will observe the obligations of neutrality. (1921, 
Naval War College, Int. Law Documents, p. 349.) 

As the rights and obligations of the neutral are recip- 
rocal, and if the neutral is not able to fulfill its obliga- 
tions, the belligerent must to that extent be free to take 


measures essential to its protection, for in neutral waters, 
the belligerent obligation to refrain from hostile action 
is based upon presumption of local protection against 
belligerent acts on the part of the enemy forces. 

Manifestly such action should not be beyond what 
would be justified upon the high sea where an enemy 
merchant vessel unarmed and engaged merely in regular 
commerce would be liable under ordinary conditions to 
capture only. Within neutral jurisdiction capture would 
be justified only upon grounds that would imply that 
the mere presence of the merchant vessel of Y in the 
port of B endangered the cruiser of X. As the authori- 
ties of B are unable to protect the cruiser of X, in case 
of evident risk the commander of the cruiser is under 
obligation to take the action that he might otherwise 
call upon the authorities of B to take. The only method 
by which the commander can inform himself as to the 
character of the merchant vessel of Y is by visit and 
search which would be with view to assuring his safety. 

If by visit and search he finds the Young is armed 
and equipped to cruise against state X, he would act 
accordingly. State B would in no appreciable degree 
be injured, by taking from one of its ports, where it 
was impotent, a vessel which might endanger the peace 
of the port or threaten the safety of a friendly state; 
while on the other hand interference within its ports 
with commerce which would disturb the course of its 
trade would be unjustifiable and a ground for reparation. 

The recent development and use of radio at the 
time of the formulation of the Hague Conventions in 
1907 naturally left many matters for regulation by sub- 
sequent action. The use of radio in the Russo-Japanese 
war, 1904^5, had given rise to a few problems for some 
of which the Hague Conventions made provisions. The 
1907 Hague Convention (V) concerning the Rights and 
Duties of Neutral Powers and Persons in case of War 
on Land embodies certain prohibitions. 


Article 3. Belligerents are likewise forbidden to: 

(a) Erect on the territory of a neutral Power a wireless 
telegraphy station or other apparatus for the purpose of com- 
municating with belligerent forces on land or sea ; 

(6) Use any installation of this kind established by them be- 
fore the war on the territory of a neutral Power for purely 
military purposes, and which has not been opened for the service 
of public messages. 

Article 8. A neutral power is not called upon to forbid or 
restrict the use on behalf of the belligerents of telegraph or tele- 
phone cables or of wireless telegraphy apparatus belonging to 
it or to Companies or private individuals. 

Article 9. Every measure of restriction or prohibition taken by 
a neutral Power in regard to the matters referred to in Articles 7 
and 8 must be impartially applied by it to both belligerents. 

A neutral Power must see to the same obligations being ob- 
served by Companies or private individuals owning telegraph 
or telephone cables or wireless telegraphy apparatus. (1908, 
Naval War College, Int. Law Situations, pp. 189-190.) 

The 1907 Hague Convention (XIII) concerning the 
Rights and Duties of Neutral Powers in Naval War also 
covered certain relations of radio telegraphy : 

Belligerents are forbidden to use neutral ports and waters as 
a base of naval operations against their adversaries, and in par- 
ticular to erect wireless telegraphy stations or any apparatus for 
the purpose of communicating with the belligerent forces on land 
or sea. (Ibid., p. 215.) 

During the World War, 1914-18, however, the neutral 
control of radio became much extended. The United 
States, by an Executive Order of President Wilson, took 
over some of the high-power radio stations and placed 
them under control of the Navy, and regulations were 
prescribed to assure the Government that messages of an 
unmistakably neutral character only should be trans- 
mitted by these stations. 


(a) The Xane should take no action against the 
Young merely because the Young has entered the port 
of B. In case the Xane is convinced that the Young is 


abusing its privileges in B because of the weakness of the 
local authorities, the Xane may visit and search the 
Young as a basis for determining subsequent action. 

(b) If the Yarrow remains in port more than 24 
hours, unless for the lawful taking on of coal or supplies 
or making repairs to render the ship seaworthy, the com- 
mander of the Xane may request the authorities of state 
B to intern the Yarrow. 

(e) The commander of the Xane should protest 
against military use of radio and if no competent local 
authority is present, should take such measures as may 
be least arbitrary to prevent its use. 

Situation II 


States X and Y are at war. Other states are neutral. 

(a) A merchant vessel of state N, the Nagle, is an- 
chored in the lee of and 1,000 feet from a lighthouse of 
state E. The lighthouse is 14 miles off the coast of state 
R and is built upon a reef always submerged. A cruiser 
of state X, the Xanthos, approaches and is about to visit 
and search the Nagle, when vessels of war of states N 
and R appear and the Nagle calls upon both for protec- 

(h) State R has also established a landing station for 
aircraft built upon a submerged reef 20 miles from any 
land. Would the same solution as for (a) hold in case 
the Nagle was anchored off this station. 

(c) State R has also established a floating landing 
station for aircraft anchored to a submerged reef 20 
miles from any land. Would the same solution as for 
(a) hold* in case the Nagle was tied to the floating land- 
ing station? 

(d) State R has filled in a strip of shallow water out 
from its coast a distance of 5 miles, thus making a nar- 
row causeway to a landing station for aircraft. The 
station is built upon a reef which is always submerged. 
Would the same solution as for (a) hold in case the 
Nagle was sailing within 1 mile of the causeway but 
4% miles from the mainland of R ? 

(e) How should an aircraft of Y be treated by: (1) 
a cruiser of X, and (2) by a military aircraft of X 
when not more than 3 miles from the landing station 
mentioned in (£), the floating landing station men- 
tioned in (c) and the causeway mentioned in (d) ? 




(a) The visit and search of the neutral merchant ves- 
sel is lawful, as there is no territorial sea around the 
lighthouse built upon a submerged reef 14 miles from 
any coast. No protection other than to assure the law- 
ful exercise of the visit and search should be given to 
the Nagle. 

(b) The visit and search of the neutral merchant ves- 
sel is lawful, as there is no territorial sea around the 
landing station for aircraft built upon a submerged reef 
20 miles from any land. No protection other than to 
assure the lawful exercise of the visit and search should 
be given by neutral vessels of war to the Nagle. 

(c) The visit and search of the Nagle tied to an an- 
chored landing station for aircraft of R is lawful, as 
there is no territorial sea around the landing station for 
aircraft 20 miles from any land. No protection other 
than to assure the lawful exercise of the visit and search 
should be given to the Nagle. 

(d) The visit and search of the neutral merchant ves- 
sel within 1 mile of a causeway built out from shore to 
a landing station for aircraft is not lawful, as the mer- 
chant vessel is within territorial sea and the vessel of 
war of R should afford protection against any violation 
of the neutrality of state It, and should protect the mer- 
chant vessel against any violation of its rights within 
these waters. 

(e) All enemy aircraft are liable to capture if non- 
military, or to attack if military, when not on or over 
the landing station mentioned in (b) or (c). Enemy 
aircraft may not be lawfully captured or attacked when 
within 3 miles of the causeway or landing station men- 
tioned in (d) but should be interned. 


High seas. — The rights of states and of persons in re- 
gard to the high seas has been a matter of differing 
opinion and practice from early times. This is under- 


standable when the nature of the sea and its varied 
uses are considered. When the sea is regarded as the 
barrier against invasion, the attitude would be different 
from that at a time when the sea is regarded as a high- 
way between countries. There would also be the differ- 
ences due to interest in the seas as a source of food supply 
and as the way of commerce. The theories and conten- 
tions of Grotius in Mare Liberum, 1608, made clear the 
demand for freedom of the sea which Selden in Mare 
Clausum, 1635, tried to meet by somewhat exaggerated, 
though ably presented, pretentions of England for a 
closed sea. 

A survey of the material relating to the control and 
use of the sea shows the influence of national interests 
upon the views sustained which range from that of ex- 
clusive proprietary rights to the denial of any control. 
The claim to exclusive property in the sea was gradually 
abandoned, but other interests remained which could not 
be abandoned. It had been found that many pretensions 
and paper claims embodied in proclamations and decrees 
were not worth maintaining. There was, therefore, 
growing willingness to accept Bynkershoek's proposal of 
1702 that the authority of the state over the sea should 
extend to the effective range of the cannon, which at that 
time was estimated to be 3 miles. The 3-mile limit be- 
came more and more conventionalized but was not uni- 
versally accepted even at the Hague Codification Con- 
ference in 1930. 

Use of the sea. — While there are differing theories as 
to the nature of maritime rights, there is a general agree- 
ment that innocent use of the sea is common to all. 
What the limits of innocent use are is debatable and has 
aroused controversies. Some of the controversies have 
been settled by the course of events without any formal 
abandonment of positions assumed by any party; others 
have resiu ed .i treaty a<rreenn 
.understandings. In general, it may be said that use, as 


m navigation, is accepted as a right of all; and abuses, 
as by pollution, is denied as generally injurious. 

In concrete instances, such as the laying of submarine 
cables, there is an admitted innocent use which may be 
supported against negligent use such as careless drag- 
ging of an anchor upon the sea bottom in a submarine 
cable area, or there may be an admitted abuse such as 
in the case of piracy, or a conventional abuse as in slave 

The problem of use and abuse in time of war differs 
materially from the same problem in time of peace, and 
belligerent use differs from neutral use. The limits of 
territorial jurisdiction are not changed by virtue of use 
or abuse of the sea in time of peace or in time of war 
though the rights of use may be modified. 

Aids to navigation. — While islands as products of nat- 
ural forces are generally appropriated, artificial struc- 
tures have a status differing somewhat according to cir- 

The free use of the sea by all under ordinary condi- 
tions is now admitted. Ships may sail at will on the 
high sea. That they may sail safely, it is essential that 
dangerous places be marked. That the voyage may be 
convenient and profitable, it is essential that routes be 
buoyed and lighted and that depths be known. For such 
purposes national agencies have been permitted to assume 
a degree of jurisdiction outside their maritime limits. 
States have built and maintained lighthouses on reefs 
well beyond their maritime jurisdiction and have marked 
channels in the high seas. They serve the general good 
but may specially benefit the state which has undertaken 
their construction and maintenance. It may be true that 
the locating in the high seas of some aid to navigation 
may modify the path of commerce and benefit one state 
at the cost of another, but if it is for the general good, 
the action of the state benefited will often be approved 
as setting an example to other states. 


General considerations. — All states have a common 
right to use the high seas for navigation and to a share 
in its resources. Long and unopposed appropriation of 
the products of the sea by a state in a certain area may 
lead other states to acquiesce in the claim of exclusive 
use, or treaties between states may voluntarily regulate 
the use of the high sea or its resources so far as the 
states parties to the treaties are concerned. 

Extension of authority beyond the territorial sea has 
been tolerated in certain cases as a measure of protection 
in such instances as in the establishing of defense areas 
adjacent to fortifications or for strategic reasons. The 
placing of lighthouses, buoys, etc., which serve all alike 
has become customary and the state which has con- 
structed and placed the lighthouse or buoy has admittedly 
the jurisdiction over it, but it is now generally main- 
tained that the jurisdiction of the state does not extend 
beyond the lighthouse itself into the surrounding high 
sea. Perhaps it might be affirmed that artificial struc- 
tures built in the high seas do not extend the area of 
the territorial sea of the state placing the structure, 
while structures built out from the land may extend the 
coast line and correspondingly extend the territorial sea 
measured from that line. Areas appearing above the 
surface of the sea from natural causes have been re- 
garded as belonging to the nearby state as in the case 
of the Anna, 1805 (5 C. Kobinson 373), when the British 
Court held that mud islands formed at the mouth of the 
Mississippi River were American territory and that 
jurisdiction extended 3 miles from these islands. Islands 
discovered in the high seas at a distance from land be- 
long to the discoverer if they are subsequently occupied 
or if steps are taken for effective occupation. 

Suggestions as to jurisdiction. — Various suggestions 
have been made from time to time as to jurisdiction over 
" airports in the high seas ", " floating islands ", " marine 
bases for aircraft ", " sea bases for aircraft ", " sea- 


dromes ", or over such contrivances under some other 
title. In 1925 the American Institute of International 
Law put forth what is called a project in regard to 
jurisdiction, of which articles 13 and 14 were as follows: 

Article 13. 

The American Republics whose coasts are washed by the waters 
of the sea and which possess a navy or mercantile marine, shall 
have the right to occupy an extent of the high sea contiguous 
to their respective territorial sea necessary for the establishment 
of the following more or less permanent installations, provided 
they are in the general interest : 

1. Bases for nonmilitary airships and dirigibles ; 

2. Wireless telegraph stations ; 

3. Stations for submarine cables ; 

4. Lighthouses; 

5. Stations for scientific exploration ; 

6. Refuge stations for the shipwrecked. 

Article 14 

It is expressly forbidden to fortify the installations referred 
to in the preceding article and to use them, even indirectly, as 
bases of supply for warships, military airplanes and dirigibles, 
or for submarines. (20 American Journal International Law, 
Special Supplement, 1926, p. 325.) 

This subject had been mentioned in Professor Sch lick- 
ing's report to the League of Nations Committee on 
Territorial Waters. He said : 

As regards islands which are artificially created by anchorage 
to the bed of the sea, and which have no solid connection with 
the bed of the sea, but which are employed for the establishment 
of a firm foundation, e.g., for enterprises designed to facilitate 
aerial navigation, we must be guided by the view that such an 
enterprise cannot claim that a special zone of territorial sea is 
constituted round such artificial island. Such fictitious islands 
must be assimilated to vessels voyaging on the high seas. 

It has been discussed whether a zone of territorial sea should 
be established around artificial islands which are actually con- 
nected with the bottom, such as islands designed to carry light- 
houses ; there is no uniform legal doctrine as regards such islands. 
This is evident from the fact that two such eminent authorities 


as the English judge, Lord Russell, and the jurist, M. L. Oppen- 
heim, have expressed divergent views. 

Lord Russell states : "If a lighthouse is built upon a rock or 
upon piles driven into the sea, it becomes, as far as that light- 
house is concerned, part of the territory of the nation which has 
erected it." Oppenheim says : " II n'y pas de droits de souv- 
erainete sur une zone de la mer que baigne les phares." (Ibid., 
p. 87.) 

After discussion no mention of this subject appeared 
in the amended draft. 

The circulation of aircraft in relation to the high sea 
was a particular subject of discussion at the Neuvieme 
Congres International de Legislation Aerienne in 1930. 
After several days of discussion, the following text was 
adopted : 

Aeroports de Haute Mer 

Article premier.. — Aucun aeroport de haute mer, cree pour les 
besoins de la navigation aerienne, qu'il soit la propriete d'un 
particulier ou d'un Etat, ne pent etre etabli en haute mer autre- 
ment que sous l'autorite et la responsabilite d'un Etat, que ce 
dernier ait un littoral maritime ou non. 

Art. 2. — L'Etat sous l'autorite duquel se trouve place cet aero- 
port de haute mer en regie les conditions d'acces et d'exploitation. 

Si l'aeroport de haute mer est ouvert a l'usage public, aucune 
discrimination ne peut etre faite, au point de vue de l'acces, sur 
la base de la nationality 

Art. 3. — Les Etats doivent porter reciproquement & leur con- 
naissance leurs projects de creation d'aeroports de haute mer. 

Au cas ou dans un delai a determiner quelque Etat s'y opposait 
le differend serait porte devant la Societe des Nations et tranche" 
par elle. 

Si pour une raison quelconque la Socl6te des Nations ne pou- 
vait §tre utilement saisie — ou si elle ne parvenait pas a regler le 
differend — les parties seront tenues de recourir a la procedure de 
l'arbitrage obligatoire. (9 Congres International de Legislation 
Aerienne, p. 233.) 

While certain propositions in regard to the treatment 
of seadromes in time of war had been before the Con- 
gress, no conclusions were agreed to as a result of the 

3628—34 5 


Resolutions, Budapest, 1930. — At the ninth meeting of 
the Comite Juridique International de FAviation at 
Budapest, October 1, 1930, certain resolutions were also, 
after discussion, adopted. These were as follows: 

Article premier. — Aucun aeroport flottant, cree pour les 
besoins de la navigation aerienne, qu'il soit la propriete d'un par- 
ticulier ou d'un Etat, ne peut etre etabli en haute nier, autre- 
ment que sous 1'autorite et la responsabilite d'un Etat, que ce 
dernier ait un littoral maritime ou non. 

Art. 2. — L'Etat sous 1'autorite duquel se trouve place cet 
aeroport flottant en regie les conditions d'acces et d'exploitation. 

Si l'aeroport flottant est ouvert a l'usage public, aucune dis- 
crimination ne peut etre faite, au point de vue de l'acces, sur la 
base de la nationality. 

Art. 3. — Les Etats doivent porter reciproquement a leur con- 
naissance leurs projets de creation d'aeroports flottants. 

Au cas oti dans un delai a determiner quelque Etat s'y oppo- 
serait, le differend serait porte devant la Societe des Nations 
et tranche par elle. 

Si, pour une raison quelconque, la Societe des Nations ne 
pouvait etre utilement saisie — ou si elle ne parvenait pas a 
regler le differend — les parties seront tenues de recourir a la 
procedure de l'arbitrage obligatoire. 

Art. 4. — En temps de guerre, un aeroport de haute mer ne peut 
etre l'objet ni de capture, ni de deroutement. Toutefois, quand 
l'aeroport releve de l'un des belligerants, l'autre peut le faire 
passer sous son autorite. 

En aucun cas il n'est permis a l'un des belligerants de convertir 
un aeroport neutre en base aero-navale. Un tel usage engagerait, 
conformement aux principes generaux de la neutralite, la res- 
ponsabilite de l'Etat qui a autorite sur l'aeroport de haute mer. 
(XV Droit Aerien, p. 24.) 

Discussion in the Institut de Droit International, 
1913. — In 1913 the Institut de Droit International dis- 
cussed the subject of maritime jurisdiction. Sir Thomas 
Barclay and Prof. L. Oppenheim made the report, but 
they were not in entire accord. In the report of Profes- 
sor Oppenheim was also pointed out some questions 
relating to jurisdiction over lighthouses: 

Ayant discute les trois articles de l'avant-projet de Sir T. 
Barclay sur lesquels je ne suis point d'accord avec lui, je voudrais 
maintenant attirer Pattention sur un point important qui n'est 


pas mentionne dans le rapport de Sir T. Barclay, c'est-a-dire, la 
question des phares batis sur des rochers ou des bancs de mer. 
C'est une regie fixe que la zone de la mer territorial doit etre 
mesuree a partir de la laisse de basse maree de la cote, que cette 
cote soit celle de la terre ferme ou celle d'une lie situee dans 
la zone de la mer territorial de la terre ferme, ou la cote d'une 
lie situee dans la haute mer et occupee par un Etat. La ques- 
tion se pose done de savoir si un phare bati sur un rocher ou sur 
un banc de mer submerge, dans la haute mer ou dans la mer 
territoriale, doit etre considere comme si e'etait une ile, de sorte 
que l'Etat possesseur du phare aurait un droit de souverainete 
sur une mer territoriale a l'entour de ce phare. 

Ce point est de haute importance, car beaucoup de phares sont 
batis sur des rochers ou sur des piles enfoncees dans le lit de la 
mer en dehors de la mer territoriale. Par example, le fameux 
phare d'Eddystone dans la Manche est a quatorze milles de la 
cote du Devonshire. (26 Annuaire de l'lnstitut de Droit Inter- 
national p. 408.) 

Professor Oppenheim then refers to the position of 
Sir Charles Russell in the Bering Sea Arbitration which 
is not entirely clear and says — 

Si cette assertion de Sir Charles Russell etait juste, il serait 
necessaire d'accorder & tout Etat qui a bati un tel phare un 
droit de souverainete sur la mer territoriale entourant ce phare ; 
mais, a mon sens, cette assertion n'est pas justifiee. Je crois 
que l'assimilation des phares aux iles est de nature a induire en 
erreur, et qu'il vaudrait mieux traiter les phares sur le meme 
pied que les bateaux-phares amarres. De meme qu'un Etat n'a 
pas le pouvoir de reclamer souverainete sur une mer territoriale a 
l'entour d'un bateau-phare amarre\ de meme il n'a pas le pouvoir 
de reclamer cette souverainete -sur une zone maritime a l'entour 
d'un phare dans la mer. 

Pour cette raison, je proposerais d'ajouter a l'article l er de 
l'avant-projet l'alinea 3 qui suit : " II n'y a pas de droit de souver- 
ainete sur une zone de la mer qui baigne les phares." (Ibid., 
p. 410.) 

Acquisition of island jurisdiction. — Where an island is 
discovered and occupied, it is commonly considered as 
being under the jurisdiction of the state of the flag of 
the discoverer and occupier if it is outside the maritime 
limits of any other state. Even if an island should be 
thrown up by volcanic or other force, the state of the 


discoverer would have valid claim to jurisdiction. This 
practice of appropriation by the discoverer and occupier 
has long been recognized. 

What is an island? — It is generally admitted that ter- 
ritorial sea may be claimed around an island to be meas- 
ured as from the mainland. 

In the general observations submitted by governments 
which became the bases of discussion for the League of 
Nations Conference for the Codification of International 
Law, there were replies to the question, what is meant 
by an island in considering its relation to territorial 
waters ? 

The reply of Great Britain, with which other states 
of the British Commonwealth of Nations generally 
agreed, was as follows : 

An island is a piece of territory surrounded by water and in 
normal circumstances permanently above high water. It does 
not include a piece of territory not capable of effective occupa- 
tion and use. 

His Majesty's Government consider that there is no ground 
for claiming that a belt of territorial waters exists round rocks 
and banks not constituting islands as defined above, and would 
view with favour an international agreement to this effect in 
order that there may be no doubt as to the status of the waters 
round such rocks and banks and round artificial structures raised 
upon them. (Conference for the Codification of Int. Law. League 
of Nations. C. 74 M. 39, 1929, V., vol. II, p. 53.) 

This British view would not merely deny territorial 
waters for artificial structures but also certain rocks and 

The German reply gave a different point of view : 

The German Government considers that the geographical notion 
of an " island ", which is taken as the basis in the preparation 
of maritime charts, covers all the characteristics of a natural 
island; any land which emerges from the sea and is dry at 
the level adopted in the chart must therefore be regarded as a 
natural island. The claim occasionally advanced that anchored 
buoys, and in particular lightships, snould be regarded as 
" islands " would seem to be indefensible. It should therefore 
be laid down that artificial islands (artificial constructions) 


should be assimilated to natural islands, provided that they rest 
on the sea bottom and have human inhabitants. (Ibid., p. 52.) 

The German reply accordingly assimilates inhabited 
artificial constructions resting on the sea bottom to 
natural islands. 

Denmark introduces certain conditions as to the ex- 
tension of jurisdiction by artificial structures. 

In determining the extent of the territorial waters around the 
coast, account is also taken of islands and reefs, as has been 
stated in paragraph IV (a). The same rule applies to artificial 
islands, lighthouses, etc., when determining the breadth of the 
territorial bolt towards the open sea. 

Where the territorial waters of two states are in contact, 
neither of them would be entitled to modify the existing delimita- 
tion to the prejudice of the other, by the construction of artificial 
islands, lighthouses, etc. (Ibid., p. 52.) 

The Netherlands proposed the following : 

an island should be understood to be any natural or artificial 
elevation of the sea bottom above the surface of the sea at low 
tide. (Ibid., p. 53.) 

This point of view does not distinguish between natural 
and artificial elevations provided that they are exposed 
at low tide. 

Rumania went further in its inclusive categories, 

by an island sliould be understood a land surface, rocky or 
otherwise, covered or not covered by water, connected or uncon- 
nected with the continent, over which it is impossible to navigate. 
(Ibid., p. 53.) 

The Committee in preparing the Basis for Discussion, 
in view of the replies, made no reference as to artificial 
structures but formulated the following : 

In order that an island may have its own territorial waters, 
it is necessary that it should be permanently above the level of 
high tide. 

In order that an island lying within the territorial waters of 
another island or of the mainland may be taken into account in 
determining the belt of such territorial waters, it is sufficient for 
tae island to be above water at low tide. (Ibid., p. 54.) 


The result of the consideration by the Second Com- 
mission of the Conference of 1930 was : 

Every island has its own territorial sea. An island is an area 
of land, surrounded by water, which is permanently above high- 
water mark. 


The definition of the term " island " does not exclude artificial 
islands, provided these are true portions of the territory and not 
merely floating works, anchored buoys, etc. The case of an 
artificial island erected near to the line of demarcation between 
the territorial waters of two countries is reserved. (League of 
Nations Documents, C. 230. M. 117. 1930. V., p. 13.) 

This statement does not make clear what would be the 
attitude upon artificial islands in general, but merely 
makes somewhat indefinite references to islands, " true 
portions of the territory." 

Lighthouses, 1893. — In the Argument of the United 
States in the Fur Seal Arbitration, 1893, a question was 
incidentally raised in regard to lighthouses. 

If a light-house were erected by a nation in waters outside of 
the* three-mile line, for the benefit of its own commerce and that 
of the world, if some pursuit for gain on the adjacent high sea 
should be discovered which would obscure the light or endanger 
the light-house or the lives of its inmates, would that Govern- 
ment be defenseless? (9 Fur Seal Arbitration, Argument of the 
United States, p. 176.) 

Sir Charles Russell referring to this and to questions 
raised as he discussed the point in his oral argument said : 

Well, it is a very difficult case to realize what is really meant by 
that. For instance, I cannot quite realize how a pursuit of fish- 
ing on the high sea could, except by some stretch of imagination 
of which I am not capable, require the obscurity of the light of 
a light-house, or endanger the light-house or the lives of its in- 
mates ; but I wish to point out that I think my friend has, for 
the moment forgotten, that if a light-house is built upon a rock 
or upon piles driven into the bed of the sea. it becomes, as far 
as that light-house is concerned, part of the territory of the 
nation which has erected it, and, as part of the territory of the 
nation which has erected it, it has, incident to it, all the rights 
that belong to the protection of territory — no more and no less. 

Mr. Phelps. If it should be five miles out, 


Sir Charles Russell. Certainly, undoubtedly. The most im- 
portant light houses in the world are outside the 3 mile limit. 

Lord Hannen. The great Eddystone Light-house, 14 miles off 
the land, is built on the bed of a rock. 

Sir Charles Russell. That point has never been doubted ; and 
if it were there is ample authority to support it. The right to 
acquire by the construction of a light-house on a rock in mid- 
ocean a territorial right in respect of the space so occupied is 
undoubted ; and therefore I answer my friend's case by saying 
that ordinary territorial law would apply to it — there is no reason 
why any different territorial law should apply. 

Then my friend proceeds: 

" Lord Chief Justice Cockburn answers this inquiry in the case 
of Queen v. Keyn above cited (p. 198) when he declares that such 
encroachments upon the high sea would form a part of the de- 
fence of a country, and ' come within the principle that a nation 
may do what is necessary for the protection of its own territory.' " 

The passage which I conceive my friend was referring to, is a 
passage which, like that from Azuni, requires, in order to under- 
stand it, the whole passage to be read. I am reading now from 
page 58 of a printed report of the Judgment of Lord Chief Justice 

" It does not appear to me that the argument for the prosecution 
is advanced by reference to encroachments on the sea, in the way 
of harbours, piers, break-waters, light houses, and the like, even 
when projected into the open sea, or of forts erected in it, as is 
the case in the Solent. Where the sea, or the bed on which it 
rests, can be physically occupied permanently, it may be made 
subject to occupation in the same manner as unoccupied territory. 
In point of fact, such encroachments are generally made for the 
benefit of the navigation ; and are therefore readily acquiesced 
in. Or they are for the purposes of defence, and come within the 
principle that a nation may do what is necessary for the protec- 
tion of its own territory. Whether if an encroachment on the sea 
were such as to obstruct the navigation, to the ships of other 
nations, it would not amount to a just cause of complaint, as 
inconsistent with international rights, might, if the case arose, 
be deserving of serious consideration. That such encroachments 
are occasionally made seems to me to fall very far short of estab- 
lishing such an exclusive property in the littoral sea as that, in 
the absence of legislation, it can be treated, to all intents and 
purposes, as part of the realm." 

In other words, it defends and justifies the taking possession 
of a certain part of the sea, and permanently occupying it for 
the purpose of erecting light-houses. (13 Fur Seal Arbitration, 
Proceedings, p. 337.) 


Discussion of 1893 attitude. 2 — The statement of Sir 
Charles Russell has been held by some to support a claim 
to the extension of maritime jurisdiction by the erection 
of a lighthouse or other structure in the high sea. Sir 
Charles was probably not giving special attention to this 
aspect of the question, but his remarks strictly construed, 
and any statement in regard to fundamental rights must 
be strictly construed, would scarcely warrant such con- 
struction. What Sir Charles said was that, 

it (the light-house) becomes, as far as that lighthouse is con- 
cerned, part of the territory of the nation which has erected it, 
and, as part of the territory of the nation which has erected it, 
it has, incident to it, all the rights that belongs to the protection 
of territory — no more and no less. 

and later he says, in reply to a question — 

I answer my friend's case by saying that ordinary territorial 
law would apply to it^— there is no reason why any different terri- 
torial law should apply. 

This seems merely to affirm that the lighthouse itself 
is under the territorial jurisdiction and not to imply an 
extension of maritime jurisdiction. 

Wesilake's opinion. — Referring to this statement of Sir 
Charles Russell in his discussion of territorial waters, 
Professor Westlake said: 

The area of the land on which a strip of littoral sea is dependent 
is of no consequence in principle. Guns might be planted on a 
small island, and we presume that even in practice an island, 
without reference to its actual means of control over the neigh- 
bouring water, carries the sovereignty over the same width of the 
latter all round it as a piece of mainland belonging to the same 
state would carry. But an extreme case may be put of something 
which can scarcely be called an island. " If," Sir Charles Russell 
said when arguing in the Behring sea arbitration, " a lighthouse 
is built upon a rock or upon piles driven into the bed of the sea, 
it becomes as far as that lighthouse is concerned part of the 
territory of the nation which has erected it, and, as part of the 
territory of the nation which has erected it, it has incident to 
it all the rights that belong to the protection of territory — no more 
and no less." It is doubtful from the context whether the eminent 


advocate meant by this to claim more for the lighthouse in its 
territorial character than immunity from violation and injury, of 
course together with the exclusive authority and jurisdiction of 
its state. It would be difficult to admit that a mere rock and 
building, incapable of being so armed as really to control the 
neighbouring sea, could be made the source of a presumed occupa- 
tion of it converting a large tract into territorial water. It might 
however be fair to claim an exclusive right of fishing so near the 
spot that, without the light, fishing there would have been too 
dangerous to be practicable. (International Law, part I, p. 186.) 

Professor Westlake's doubt as to the exclusive right to 
fishing may be arguable, but if the lighthouse has been 
constructed for the purpose of security to local fisheries, 
claims might be made accordingly, even though such a 
contention of exclusive right does not seem to have been 
made in case of lightships. 

Later opinion. — While in the last edition of Oppen- 
heim's International Law as revised by himself there 
is no comment upon Sir Charles Russell's statement, there 
is in the Roxburgh (third edition) edition of 1920 a 
reference to this statement, which is somewhat abbrevi- 
ated in the edition of 1928 prepared by Dr. McNair, as 
follows : 

Since the most important lighthouses vxe built outside the 
maritime belt of the littoral States, the question arises whether 
a State can claim a maritime belt around its lighthouses in the 
open sea — a question which Sir Charles Russell, the British 
Attorney-General, in the Behring Sea Seal Fisheries case answered 
in the affirmative. It is tempting to compare such lighthouses 
with islands, and argue in favour of a maritime belt around 
them ; but I believe that such an identification is misleading, and 
that lighthouses must be treated on the same lines as anchored 
lightships. Just as a State may not claim sovereignty over a 
maritime belt around an anchored lightship, so it may not make 
such a claim in the case of a lighthouse in the open sea. (1 
International Law, 4th ed., p. 403.) 

Dr. M. F. Lindley, writing in 1925 and also referring 
to Sir Charles Russell's remarks, says: 

Now, considering first the question of sovereignty over the sur- 
rounding water, although we agree with Westlake's conclusion on 


this point, it appears to us to rest upon other grounds. A control 
sufficient to render the occupation effective could, apparently, be 
exercised by placing an armed vessel upon the part of the sea 
in question, so that the fact that it may be impossible to fortify 
the lighthouse would not, by itself, be sufficient to render the 
surrounding water inappropriable. The principle underlying this 
case appears to be the same as that governing the one we have 
just considered, and if a rock or barren island is not occupied 
for its own sake, but merely to facilitate fishing and navigation 
in the surrounding ocean, it does not appear that this would be 
a sufficient justification for extending the sovereignty of the 
occupying State over those waters. 

Secondly, in regard to the exclusive right of fishing, it is 
difficult to see how the mere building of the lighthouse, which 
is not sufficient to render the surrounding waters territorial, 
takes this case out of the operation of the principle underlying 
the decision in the Beliring Sea Arbitration. Although the fishing 
off the Seven Stones at the mouth of the Bristol Channel would 
be dangerous without the lightship which Trinity House main- 
tains there, no exclusive right in the fishing is claimed for British 
fishermen, and there appears to be no difference in principle be- 
tween establishing a lightship upon a barren rock or upon piles 
driven into the sea bottom. The case appears to be one to be 
dealt with by Convention between the States interested, for which 
precedents are not lacking. (Acquisition and Government of 
Backward Territory in International Law, p. 67.) 

Beacons. — Beacons, buoys, and markers of various 
types are now common in parts of the sea where there 
are dangerous reefs and shoals, but it would not be 
claimed that these extend the coastline of the state which 
may place these aids to navigation. Indeed they are 
not infrequently changed in location, usually with notice 
to mariners without any contention that the jurisdiction 
of the state making the change has relocated its terri- 
torial waters jurisdiction. Changing currents, shoals, 
etc., may make necessary the marking of new channels, 
but not the extension or modification of the jurisdiction 
of the state undertaking the marking of the channel. It 
may be affirmed that the placing of beacons, buoys, etc., 
on submerged locations does not extend the marginal sea 
jurisdiction but the jurisdiction over the marker itself 


is in the state or states locating and caring for its 

Case of United States v. Henning, 1925. — The question 
as to whether a beacon built upon a submerged reef 
would be the point from which the coastline should be 
measured was raised in the case of the United States v. 
Henning et al. in 1925. In the decision it was said : 

The point where the Frances E. was anchored was 12 miles 
west of Sea Horse Reef beacon on the west coast of Florida and 
about 16 miles west of the coast of Florida. This beacon is a 
structure built on a shallow reef, and projecting up out of the 
water, but the reef is wholly under water. 

It is contended by the government that this beacon is under 
the terms of section 3 of article 2 of this treaty (43 Stat. 176), 
to be treated as the point from which the one hour's time is to 
be estimated. I cannot concede this construction. The language 
is : " The rights conferred by this article shall not be exercised 
at a greater distance from the coast of the United States, its 
territories or possessions, than can be traversed in one hour." 

The beacon certainly is a possession of the United States, but 
these words properly mean and must be held to mean as if writ- 
ten the distance " from the coast of the United States, the coast of 
its territories, or the coast of its possessions ", for it was from 
the coast the time was to' be measured. The words undoubtedly 
had reference to such territories or possessions as Porto Rico and 
Hawaii. It certainly had no reference to marine structures 
erected in the water and having no coast. {United States v. 
Henning et al., (1925), 7 F. (2d) 488, 489.) 

While the decision in this case was reversed in 1926 
(13 F. (2d) 74), probably the same position as to the 
nature of jurisdiction as dependent upon the beacon 
would be maintained. 

Status of air. — The Convention of 1919 relating to air 
navigation which is generally accepted provides in its 
first article that "the contracting states recognize that 
every state has complete and exclusive sovereignty in the 
air space above its territory and territorial waters ", and 
this principle has been embodied in other conventions. 

There has been some debate as to whether the air over 
the high seas is res nullius or res eonvrnunis. The air 


above the sea would follow the nature of the sea. Prac- 
tice and opinion seems to favor the res communis doc- 
trine under which the high sea may be used for naviga- 
tion, but may not be exclusively appropriated. There 
arises the question as to whether states having no sea- 
coast may have a right to use the sea equally with states 
having seacoast. A considerable degree of equality has 
been admitted in the right of states having no seacoast to 
issue documents and certificates to vessels under their 
flags " in conformity with the general practice observed 
in the principal maritime states." (Art. 273. Treaty 
of Peace with Germany, June 28, 1919 ; see also Barcelona 
Declaration, April 20, 1921, 1924 Naval War College, 
Int. Law Documents, p. 83; 7 League of Nations Treaty 
Series, 1921, p. 74.) It is argued that if such states have 
a right to fly their flags on vessels, then they must have 
rights of coast states in the air above the high seas, 
which seems difficult to deny. 

Liability for use. — While a part of the field of inter- 
national law of aviation was covered in the Convention 
on the Regulation of Aerial Navigation, October 13, 1919, 
the field of private law did not receive corresponding 
attention as regards foreign aircraft. In 1925 the French 
Government took steps toward calling a conference for 
considering the private international law of aviation and 
the Comite International Technique aV Experts Juridiques 
Aeriens came into existence in 1927. This Committee 
has drawn up conventions for consideration by interna- 
tional conferences. 

In the proposed conventions the fact that the sub- 
jacent area with its population and property does not 
voluntarily come into relation to an aircraft is generally 
recognized and the responsibility for damage is placed 
upon the aircraft. This liability is affirmed in the latest 
proposed convention even though there was no inten- 
tional culpability on the part of the aircraft. Of course 
damage due to a fault of the injured party is excepted, 


e.g., if a person is trespassing on a landing field reserved 
for aircraft. 

It is evident that while there may be analogies between 
air and marine navigation, and air and land transporta- 
tion, yet there are many aspects which are not analogous. 
It is true that there may be analogies between craft- 
lighter than water and craft lighter than air, but the 
analogies are limited in scope. Wheel vehicles respon- 
sive to the force of gravity are only in small measure 
comparable to winged or motor-driven vehicles counter- 
acting some of the forces to which the wheeled vehicles 

International significance. — The international signifi- 
cance of aerial navigation is evident in the growing net- 
work of treaties and conventions particularly since 1919. 
The proposition of France to the Disarmament Confer- 
ence in 1932 as to the internationalization of civil avia- 
tion emphasized another aspect and other possibilities 
of aviation. Whether the French proposition would 
result as prophesied is doubted by some. Certainly the 
consequences are not as simple as some seem to believe. 

Definitions. — In laws and conventions definitions have 
been adopted but these are not yet entirely uniform. In 
general, the term " aircraft " includes any contrivance 
capable of aerial flight and would cover flying machines, 
balloons, gliders, etc., constructed for flight but not such 
contrivances as parachutes and projectiles. 

The term " air space " is usually held to be the space 
above any specified area and national air space is that 
above the area over which a state exercises jurisdiction. 

Detailed regulations as to rules of the road, signals, 
markings, landing procedure, personnel, etc., are already 
common. International conventions on these matters are 
now numerous and usually aim to facilitate communica- 
tion. Within the United States it has been necessary that 
many Federal regulations should be made as to aerial 
navigation as a part of interstate commerce, even to the 


modification of State regulations which might hamper 
interstate flying. The recognition of the principle which 
has thus been applied in American interstate aviation 
may similarly be essential in international aviation. 

Rules for air navigation. — Thus far detailed rules for 
air navigation have been largely national, though some 
conventional agreements have been made both bilateral 
and multilateral. 

Some of the national legislation has been detailed in 
specifications and regulations. Nearly all contain some 
definitions of which the Chilean Decree of May 15, 1931, 
is a type. This decree defines " aerodrome " as " any area 
of land or water specially arranged for the accommoda- 
tion, departure, or landing of aircraft." (Int. Commis- 
sion for Air Navigation, Bulletin of Information, no. 526, 
art. 34, p. T.) 

Portuguese decree, October 25, 1930. — In 1930 Portugal 
issued a decree promulgating detailed rules in regard to 
aerial navigation. These rules which are full and classi- 
fied defined aircraft. By " aerodrome " the rules (article 
7) understand any land or water surface set apart for the 
taking off or arrival of aircraft. At an airport, as dis- 
tinguished from an " aerodrome ", there would be also 
additional facilities for revenue and other formalities as 
in a maritime port. 

Conventional regulation. — Early projects in regard to 
regulation and control of aerial flight looked to uni- 
form international regulation. No such hope has been 
realized. More than 30 bilateral conventions have, how- 
ever, embodied differing rules, but as yet these are not so 
unlike that they cannot be reconciled. 

Most of the conventions recognize the sovereignty of 
the state in the air above its jurisdiction, which includes 
its territorial sea. At the same time there is an attempt 
to maintain freedom of innocent passage though not all 
aircraft are granted passage even in time of peace. In 
general, equality of rights is conceded to all states. Reg- 


istration, etc., is to a large degree standardized. Fre- 
quent conferences are aiming at greater uniformity as 
air lines spread over more extended areas. 

Treaties upon aviation. — In recent years many treaties 
relating to air navigation have been concluded. These 
vary in their provisions but are usually reciprocal in 
granting privilege of flight in time of peace for private 
aircraft of the parties. 

An air-navigation arrangement between the United 
States and the Netherlands, of which notes of agreement 
were exchanged, November 16, 1932, contains the fol- 
lowing : 

Article 1 

For the purpose of the present arrangement (a) the term 
" territory " shall be understood to mean the United States of 
America, the Netherlands and likewise possessions, territories, and 
colonies over which they respectively exercise jurisdiction, in- 
cluding territory over sea and territorial waters; and (6) the 
term " aircraft " shall be understood to embrace private aircraft 
and commercial aircraft including state aircraft used exclusively 
for commercial purposes. 

Article 2 

(1) Each of the Parties to this arrangement undertakes in time 
of peace to grant liberty of innocent passage above its territory 
to the aircraft of the other party, provided that the conditions set 
forth in the present arrangement are observed. 

(2) It is, however, agreed that the establishment and operation 
of regular air routes by an air transport company of one of the 
Parties within the territory of the other Party or across the said 
territory, with or without intermediary landing, shall be subject 
to the prior consent of the other Party given on condition of 
reciprocity and at the request of the Party whose nationality 
the air transport company possesses. 

(3) Each Party to this arrangement agrees that its consent for 
operations over its territory by air transport companies of the 
other Party may not be refused on unreasonable or arbitrary 
grounds. The consent can be made subject to special regulations 
relating to aerial safety and public order. 

(4) Each of the Parties to this arrangement may reserve to its 
own aircraft, air commerce between any two points neither of 


which is in a foreign country. Each Party may also reserve to 
its own aircraft pleasure or touring flights starting from an 
aerodrome in its territory and returning to the same aerodrome 
for which a transportation charge would be made. (Department 
of State, Press Releases, Publication No. 409, Dec. 17, 1932, 
p. 434.) 

Regulation of air service. — With more than 100,000 
miles of air lines in regular operation, and as some of 
these make easily accessible points formerly difficult of 
access, states have been constrained to adapt their laws 
to these new conditions. This has been done in part 
by domestic legislation and in part by international 
agreement. For the carriage of foreign mail, interna- 
tional arrangements have become necessary. The results 
of national surveys, meteorological data, and other in- 
formation has been supplied by one state to others as 
well as much other data which might be of value in plan- 
ning air service. The use of the radio has added much 
to the efficiency and safety of this service. 

The regulations thus far adopted and those proposed 
show conclusively that the rules for navigation at sea 
do not and cannot apply to any great extent to aviation. 
It is unfortunate for that reason that so many maritime 
terms have crept into the language of aviation, for 
analogies in fact are often remote. 

A new set of problems may arise in regard to hydro- 
planes, if their range of flight is confined to the air above 
the sea. Questions have been raised as to whether these 
are not in all respects to be treated as maritime vessels 
as respects belligerent and as respects neutral rights. 
Questions have also been raised as to whether when on 
the water maritime law should apply and when in the 
air aerial law should apply. Hydroplanes are, however, 
except for the place of coming to a stop, so nearly iden- 
tical to aircraft which alights on land that there is no 
reason entitling them to different treatment. 

Report on air armaments, 1932. — In determining the 
treatment of aircraft in the Disarmament Conference in 


1932, it was necessary to have a definite idea as to the aid 
and service which the different types might render. In 
a resolution of April 22, 1932, the Air Commission was 
asked by the General Commission the following 
questions : 

What are the air armaments : 

(a) Whose character is the most specifically offensive; 

(&) Which are the most efficacious against national defence; 

(c) Which are the most threatening to civilians? 

Although it was made clear in the discussions in the Air Com- 
mission that the offensiveness of the air armaments, their efficacy 
against national defence, and the threat that they represent to 
civilians vary considerably on account of the wide differences in 
the geographical position of different countries, the location of 
their vital centres, and the state of their anti-aircraft defences, 
and that any qualitative question in connection with air arma- 
ments is closely bound up with quantitative considerations, the 
Commission found it possible to set down certain general conclu- 
sions, which form Part I of this report. The Commission also 
undertook a technical study of the efficacy and the use of air 
armaments. The results of this study form Part II of the present 
report. Part III contains several comments in regard to Parts 
I and II, and Part IV contains statements by various delegations, 
with an introduction. 

Part I. 

These conclusions are as follows : 

I. (a) All air armaments can be used to some extent for of- 
fensive purposes, without prejudice to the question of their 
defensive uses. 

If used in time of peace for a sudden and unprovoked attack, 
air armaments assume a particularly offensive character. In 
effect, before the State victim of the aggression can take the de- 
fensive measures demanded by the situation, or before the League 
of Nations or States not involved in the conflict could undertake 
preventive or mediatory action, the aggressor State might in 
certain cases be able rapidly to obtain military or psychological 
results, such as would render difficult either the cessation of hos- 
tilities or the re-establishment of peace. 

(6) Civil aircraft, to the extent that they might be incorpo- 
rated into the armed force of a State, could in varying degrees 
subserve miliary ends. 

(c) Independently of the offensive character which air arma- 
ments may derive from their use, their capacity for offensive 
action depends on certain of their constructional characteristics. 
3628—34 6 


(d) The possibilities of offensive action of aeroplanes carried 
by aircraft-carriers or warships equipped with landing-platforms 
(or landing-decks) must be regarded as being increased by the 
mobility of the vessels which carry them. 

(e) The capacity for offensive action of air armaments result- 
ing from such constructional characteristics should first be con- 
sidered from the point of view of the efficacy of such armaments 
against national defence, and secondly from the point of view of 
the threat offered thereby to the civilian population. 


II. (a) The aircraft forming a part of the air armaments of a 
country that may be regarded as most efficacious against national 
defence are those which are capable of the most effective direct 
action by the dropping or launching of means of warfare of 
any kind. 

( b ) The efficacy against national defence of an aircraft forming 
part of such armaments, and considered individually, depends 
upon its useful load and its capability of arriving at its objective. 

(c) The efficacy against national defence of means of warfare 
of every kind launched from the air depends upon the material 
effect which they are capable of producing. 


III. (a) The aircraft forming part of the air armaments of a 
country which can be regarded as the most threatening to the 
civil population are those which are capable of the most effective 
direct action by the dropping or launching of means of warfare 
of any kind ; this efficacy depends primarily upon the nature of 
the means of warfare employed and the manner in which they 
are employed. 

(b) The degree of threat to the civil population represented 
by an aircraft forming part of those armaments, and considered 
individually, is in proportion to its useful load and its capa- 
bility of arriving at its objective. 

(c) The means of warfare, intended to be dropped from the 
air,, which are the most threatening to the civil population are 
those which, considered individually, produce the most extended 
action, the greatest moral or material effect ; that is to say, those 
which are the most capable of killing, wounding and immobilising 
the inhabitants of centres of civil population or of demoralising 
them, so far as concerns immediate consequences, and so far as 
concerns future consequences, of impairing the vitality of human 


beings. Among these means the Commission specially mentions 
poisonous gases, bacteria and incendiary and explosive appliances. 
IV. The useful load of aircraft and their capability of arriving 
at their objective are determined by a large number of variable 
factors. Where useful load is concerned, the Air Commission 
has noted among these variable factors, for purposes of examina- 
tion, the unladen weight, the horsepower and the wing area for 
aeroplanes, the volume and the horsepower for dirigibles. 
(League of Nations Documents. Series IX, Disarmament, IX, 
48. No. Conf. D. 123, p. 1.) 

In part II the technical study showed that the " offen- 
sive character of air armaments can not be determined 
arbitrarily ", " depends upon the objectives ", etc. 

Part III contained comments upon the conclusions em- 
bodied in part I. 

The United States with Portugal cast votes against 
part I, conclusion I (d). There were 16 affirmative 
votes. The delegation of the United States made the 
following declaration: 

The delegation of the United States considers that the state- 
ment in Paragraph I (d) as to the increased possibility of offen- 
sive action of ship-based aircraft is inappropriate for inclusion in 
a report which deals with aircraft generally and which does not 
otherwise discuss specific types of aircraft of the influence of the 
base of action upon their offensive capabilities. 

" One of the tests already contained in the report is that of 
capability of arriving at an objective. Thus the mobility feature 
of ship-based aircraft if already taken into account and any 
further reference in the report which might give the impression 
that individual ship-based aircraft are more specifically offensive 
than individual aircraft taking off from bases close to land 
frontiers is misleading." 

The Portuguese delegation associated itself with this declara- 
tion, and the United Kingdom delegation stated that it shared 
the views therein expressed. (Ibid., p. 6.) 

Part IV, which set forth national opinions, gave evi- 
dence of wide differences of view ranging from that of 
states which had no air forces to that of states maintain- 
ing large air forces. 

Terminology.— -The terminology to designate a landing 
place for aircraft on the high sea has been discussed from 


time to time and various terms have been proposed. The 
following have been among the many suggestions: 
"floating island", "marine airport", "airport in the 
high sea ", " marine aerodrome ", etc., but the term " sea- 
drome ", while not ideal, has the advantage of being a 
single word of which the parts are associated with the 
location and with the use. 

Need of marine aerodromes. — There has been a grow- 
ing recognition that aerodromes would be needed at sea 
to a degree somewhat comparable to the need on land 
if transoceanic aviation is to develop rapidly. The 
transoceanic flights have in their early attempts gener- 
ally been of a spectacular character. For many reasons 
such flights have involved great risk, and expense. Non- 
stop flights are at present regarded as noneconomic 
undertakings. If transoceanic aviation is to become 
common it seems essential that seadromes be located. 

Importance of seadromes. — The proposals for locating 
seadromes have been primarily based on arguments for 
securing and increasing oversea aviation. It has been 
estimated that even a moderate number of seadromes in 
the Atlantic Ocean would increase trans-Atlantic avia- 
tion 100 percent. These seadromes, presumably equipped 
for landing, taking off, refueling, or repairing, might 
likewise be of great service toi submarines and other 

The location of seadromes would be a matter of con- 
cern to all states if these are to be under national control 
as the strategic conditions of maritime states may be 
greatly changed by such stations. It is entirely possible 
that commercial routes would indicate one location while 
strategic reasons would indicate another. Manifestly 
also the high seas may not be appropriated to the ex- 
clusive use of any state or corporation. 

Types of proposals. — Manifestly high sea aerodromes, 
if established, must be under responsible control. That 
such aids to aviation should be subject to the vagaries 


of private control, operation, and competition, must be 
considered undesirable. That it should be permitted to 
any state to establish a seadrome off the coast of another 
state for the purpose of carrying on hostilities against it 
would seem unreasonable. These and other reasons have 
led to propositions varying in nature. It has been pro- 
posed that seadromes should be assimilated to islands 
but the better opinion seems to be that seadromes are 
not to be assimilated to islands. Some have wished the 
complete control to be vested in the state of the construc- 
tor. Such a proposition has been denied as impracticable 
by others. Representatives of nonmaritime states have 
claimed the same right to construct seadromes as states 
having seacoast. This has been denied by some on the 
ground that an inland state would have no right of 
access to the sea, except by convention or grace, of coast 
states. It has been suggested that the League of Nations 
be entrusted with the administration of the system of 
seadromes but representatives of nonmembers have raised 
objections. In general, proposals have been met with 
counter proposals and objections but progress has been 
made in clarification of ideas. 

At the Disarmament Conference at Geneva, in 1932, 
the proposals ranged from that of complete abolition of 
all military aviation and internationalization of all civil 
aviation to a gradual reduction of air forces with the 
establishing of rules for their control and operation. 
The proposal to transform air forces into an interna- 
tional police was favored by some states. 

The international action of civil aviation received 
much attention at the Disarmament Conference. The 
Preparatory Commission of the League of Nations in 
the Draft Convention had introduced the following 
artic les : 

Art. 25. The number and total horse-power of the aeroplanes, 
capable of use in war, in commission and in immediate reserve 
in the land, sea and air armed forces of each of the High Con- 


tracting Parties shall not exceed the figures laid down for such 
Party in the corresponding columns of Table I annexed to this 

The number and total horse-power of the aeroplanes, capable 
of use in war, in commission and in immediate reserve in the 
land, sea and air formations organised on a military basis of 
each of the High Contracting Parties shall not exceed the figures 
laid down for such Party in the corresponding columns of Table 
II annexed to this Chapter. 

Art. 26. The number, total horse-power and total volume of 
dirigibles, capable of use in war, in commission in the land, sea 
and air armed forces of each of the High Contracting Parties 
shall not exceed the figures laid down for such Party in the corre- 
sponding columns of Table II annexed to this Chapter. 

The number, total horse-power and total volume of dirigibles 
capable of use in war, in commission in the land, sea and air 
formations organised on a military basis of each of the High 
Contracting Parties shall not exceed the figures laid down for 
such Party in the corresponding columns of Table IV annexed 
to this Chapter. 

Art. 27. Horse-power shall be measured according to the fol- 
lowing rules * * * 

The volume of dirigibles shall be expressed in cubic metres. 

Art 1 . 28. 

1. The High Contracting Parties shall refrain from prescribing 
the embodiment of military features in the construction of civil 
aviation material, so that this material may be constructed for 
purely civil purposes, more particularly with a view to providing 
the greatest possible measure of security and the most economic 
return. No preparations shall be made in civil aircraft in time 
of peace for the installation of warlike armaments for the purpose 
of converting such aircraft into military aircraft. 

2. The High Contracting Parties undertake not to require civil 
aviation enterprises to employ personnel specially trained for 
military purposes. They undertake to authorise only as a pro- 
visional and temporary measure the seconding of personnel to, 
and the employment of military aviation material in, civil avia- 
tion undertakings. Any such personnel or military material which 
may thus be employed in civil aviation of whatever nature shall 
be included in the limitation applicable to the High Contracting 
Party concerned in virtue of Part I, or Articles 25 and 26, of the 
present Convention, as the case may be. 

3. The High Contracting Parties undertake not to subsidise, 
directly or indirectly, air lines principally established for military 


purposes instead of being established for economic, administrative 
or social purposes. 

4. The High Contracting Parties undertake to encourage as far 
as possible the conclusion of economic agreements between civil 
aviation undertakings in the different countries and to confer 
together to this end. (League of Nations Publication IX. Dis- 
armament, 1930. IX. 8. No. C. 687 M. 288., p. 14.) 

Evident desiderata. — It is evident that high-sea aero- 
dromes will be essential to convenient and safe trans- 
oceanic aviation. These should have a degree of uniform 
character and administration. They should, when under 
neutral flags, not increase the war risk of states. High- 
sea aerodromes should be open to all aircraft on equal 
terms. The threat of or existence of hostilities should 
not affect the service of the aerodromes. These should 
not be fortified or adapted for war use. Exclusive con- 
trol should not be in any one state though a degree of 
national control may be essential in order to secure the 
necessary investment of public or of private capital. It 
may be easier starting de novo to obtain satisfactory 
agreements for the construction and maintenance of high- 
sea aerodromes than would be possible if many such 
structures were already in existence. The analogy is 
closer to the status of a lightship than to that of an 

Seadromes not ships. — If a seadrome could be put in 
the category of ships or vessels, the law applicable would 
be fairly well defined. It is true there may be certain 
analogies to a ship used as an aircraft carrier, but the 
aircraft carrier is by its very nature constructed for the 
purpose of navigation which is a common criterion in 
distinguishing ships from other structures. The prime 
value of a seadrome would be permanence of location in 
order that aircraft could plan their voyages with refer- 
ence to its location. In the case of Cope v. Vallette 
Dry Bock Company, 1887, which involved a suit for 
salvage of a dry dock, Mr. Justice Bradley, who ren- 


dered the decision in the Supreme Court of the United 
States, said: 

We have no hesitation in saying that the decree of the Circuit 
Court was right. A fixed structure, such as this drydock is, not 
used for the purpose of navigation, is not a subject of salvage 
service, any more than is a wharf or a warehouse when project- 
ing into or upon the water. The fact that it floats on the water 
does not make it a ship or vessel, and no structure that is not 
a ship or vessel is a subject of salvage. A ferry bridge is gener- 
ally a floating structure, hinged or chained to a wharf. This 
might be the subject of salvage as well as a drydock. A sailor's 
floating bethel, or meeting house, moored to a wharf, and kept 
in place by a paling of surrounding piles, is in the same cate- 
gory. It can hardly be contended that such a structure is 
susceptible of salvage service (119 U.S. 625, 627.) 

Some have suggested that seadromes be treated as ships 
and be assimilitated to aircraft carriers. 

In the case of Evansville Co. v. Chero Cola Co., 1926, 
the court considered whether a wharf boat, not capable 
of use as a means of transportation could be a vessel 
and said, 

The only question presented is whether appellant's wharfboat 
was a " vessel " at the time it sank. It was an aid to river 
traffic, but it was not used to carry freight from one place to 
another. It was not practically capable of being used as a means 
of transportation. It served at Evansville as an office warehouse 
and wharf, and was not taken from place to place. The connec- 
tions with the water, electric light and telephone systems of 
the city evidence a permanent location. It performed no func- 
tion that might not have been performed as well by an appro- 
priate structure on the land and by a floating stage or platform 
permanently attached to the land. (271 U.S. 19, 22.) 

From these and other cases, it is evident that a sea- 
drome even when located in the high sea would not fall 
into the category of ships which would, if neutral, be 
liable to visit and search and to presentation before a 
prize court. 

Seadromes in time of icur. — The peace-time status of 
seadromes on the high sea seems, in the opinion of the 
majority of those who have given seiious consideration 


to the matter, to be one in which the jurisdiction in the 
thing itself is in the state to which the seadrome belongs, 
or in the state whose subject established the seadrome. 

Questions may be raised as to the right of a state or of 
a citizen to establish a seadrome on the high sea. It has 
been proposed by some that this question be left to the 
League of Nations, by others that it be settled by some 
sort of an international conference or committee, and by 
others that there be no regulation. Plans for neutraliza- 
tion have met with the criticism that neutralization gives 
no guarantee in the time of war in which the neutralizing 
powers are engaged and by the further criticism that 
neutralization might provide only for a time of war 
which might never occur. 

Internationalization proposals have met with more 
support as visualizing the time of peace as well as of war 
and as based upon general rather than special considera- 
tions. The argument may be put forward that, the high 
sea being res communis, any use of the high sea other 
than that sanctioned by generally accepted practice 
should be by international authorization and under in- 
ternational control. This may be supported by the fact 
that seadromes may be a risk to navigation, that sea- 
dromes may modify the conditions of established com- 
mercial and other relations, that seadromes may be of 
capital importance in determining strategic plans. 

The arguments for internationalization of seadromes 
seem most convincing, particularly as the further use of 
the high sea should be for the general international good. 
If the principle of internationalization be accepted, the 
seadrome should not be open to any war use during 

If internationalization is not adopted as a principle 
and seadromes are nationalized, neutral seadromes 
should be closed to war use and the treatment of bellig- 
erent seadromes should be made known in advance by 
proclamations in order that neutral aircraft may not 
be subject to unknown peril. 


National control introduces many problems as to re- 
sponsibility and liability in the use of seadromes. As 
the seadromes are in the high sea, the states of the 
world may claim an interest above that in ordinary na- 
tional property as the locating of the seadrome may be 
regarded as tolerated by grace on account of its general 
service, which service may not be abandoned or made 
impossible by national exigencies. Whether a neutral 
seadrome on the high sea may be visited and searched, 
and then treated according to what the visit and search 
seemed to disclose, is to restore a type of quarter-deck 
court that has been usually viewed with disfavor by 
courts and also by military officers concerned as being 
foreign to their duties and profession. If neutral sea- 
dromes might be seized and occupied by belligerents on 
the ground of assumed nonfulfillment of the laws of 
neutrality, many abuses may arise which might involve 
serious legal and other complications. 

While there has been considerable attention given to 
the status of landing stations for aircraft at sea in time 
of peace, there has been comparatively little attention 
given to their status in time of war. Some European 
conferences upon aviation laws have given incidental 
consideration to certain aspects of this matter. In recent 
years many have thrown aside the laws of war as being 
negligible on the premise that there would be no more 
war, but, however desired this may be, a warless world 
is not yet assured, and under these circumstances war, 
if it comes, should be regulated to attain its ends with 
the least possible loss of life and property. So long as 
there is risk of war, it is evident that seadromes may be 
exceptionally exposed to its risks whether the seadrome 
be under a belligerent or under a neutral flag. 

If the seadrome be under a belligerent flag in absence 
of special regulations to the contrary, it would be liable 
to treatment as enemy property at sea. During the Span- 
ish-American War lighthouses were not regarded as in- 


violable, and during the World War, 1914-18, lighthouses 
and lights were under national control. Belligerents ex- 
tinguished both their own and opponent's lights, though 
not aiming attacks against opponent's lights as such. 
Neutrals also gave notice of special regulations. Buoys 
and buoy markings were also soinetjmes changed. It is 
not to be expected that a state would maintain aids to 
facilitate the movements against itself by its enemy 
forces, and a neutral state mav wish to take measures 
to avoid violations of its neutrality. 

The direct risk from the existence of seadromes might 
be much greater than from lighthouses or lightships. If 
a state can assume full and unregulated jurisdiction over 
a seadrome which it or its subjects has constructed in 
the high seas, then the seadrome may be treated as bel- 
ligerent or neutral, according as the state is belligerent 
or neutral. Indeed the construction and locating of sea- 
dromes might under such national control become a mat- 
ter of strategic planning for states and under the present 
tendency to permit states which have no seacoast to lo- 
cate airports on the high sea, might introduce novel prob- 
lems of offense and defense. 

Artificial extensions of land. — The extension of terri- 
tory by construction of wharves, dykes, breakwaters, etc., 
along a river is permissible so long as it works no dam- 
age to other riparian states. If the boundary line is 
already established by convention, it remains the same; 
and if the boundary has been regarded as the thalweg, 
it similarly remains unchanged. 

Artificial extensions of land into the high sea without 
causing damage to another state have been regarded as 
legitimate use of the sea. So far as the sea belongs to 
no state, there is no party that can claim to be damaged. 

Indeed, it may be maintained that with few exceptions, 
extensions of the land into the high sea are of advantage 
to other states, because the purpose would ordinarily be 
with view to greater convenience or safety in the use of 


the sea by all. Even extensions like sea walls for the 
purpose of prevention of the washing away of land would 
be a relatively economic advantage, as thereby the land 
would be preserved for possible use of man. It would 
rarely be the case that the extension of land into the high 
sea would be solely to the advantage of the state pri- 
marily concerned. 

These extensions of land area at the same time extend 
territorial and maritime jurisdiction, but of course not 
to an extent to impair the rights of other states. If a 
breakwater or other land is extended outward from the 
shore beyond the original 3-mile limit, the maritime 
jurisdiction is extended similarly. In general this gives 
rise to no complications; but if the breakwater were ex- 
tended into a relatively narrow strait between two states, 
the state upon the opposite side might have ground for 

Resume. — Whether seadromes will be essential to the 
further development of transoceanic flight, or whether 
the perfection of aircraft will make seadromes unneces- 
sary, has been argued. It has usually been admitted that 
even if aircraft become much more fully perfected, there 
may be need for some seadromes in the high seas for 
special purposes. 

Transoceanic flights will ordinarily be between states 
of different nationality and some international regula- 
tions and understandings will be needed. Such regula- 
tions and understandings are to a limited extent in exist- 
ence and others are under consideration. 

As the doctrine of the freedom of the seas has after 
centuries of struggle been generally recognized, there is 
reluctance to concede to any state in absence of specific 
agreement any extension of the maritime jurisdiction. 
National jurisdiction over lightships on the high seas and 
lighthouses built in the high seas upon submerged 
foundations has been tacitly admitted in time of peace, 
but later opinion limits jurisdiction to the lightship or 


lighthouse itself, and maintains that the placing of 
either in the high sea does not automatically extend the 
jurisdiction of the state placing the lighthouse 3 miles 
out in all directions. 

The filling in of the marginal sea outward from the 
coast has, however, been regarded as correspondingly ex- 
tending the maritime jurisdiction outward in the sea 
provided this does not involve an impairing of the juris- 
diction of any other state. While the filling in of an 
area about a lighthouse built in the high sea may be per- 
mitted so far as may be reasonably convenient and need- 
ful for the maintenance of the light, the jurisdiction of 
the state over the lighthouse is limited to this area. It 
would seem to be essential also that this national juris- 
diction extend for the safe custody of the light both 
below and above this area. 

Opinion seems to support the view that if national 
seadromes are permitted in the high seas, the national 
jurisdiction shall be limited to the seadrome and the 
space above and below and not to adjacent waters. Fur- 
ther, as the seadrome is permitted in the high sea as an 
aid to navigation in the time of peace, its use in time of 
war shall be limited to that purpose. If it is under 
neutral state jurisdiction, its function is restricted solely 
to the purpose for which it was placed and neutral pro- 
tection in adjacent waters does not extend even to vessels 
which for purposes other than the upkeep of the sea- 
drome are secured to the seadrome itself. 


(a) The visit and search of the neutral merchant ves- 
sel is lawful, as there is no territorial sea around the 
lighthouse built upon a submerged reef 14 miles from 
any coast. No protection, other than to assure the lawful 
exercise of the visit and search, should be given to the 


(b) The visit and search of the neutral merchant vessel 
is lawful, as there is no territorial sea around the land- 
ing station for aircraft built upon a submerged reef 20 
miles from any land. No protection, other than to assure 
the lawful exercise of the visit and search, should be 
given by neutral vessels of war to the Nagle. 

(c) The visit and search of the Nagle tied to an an- 
chored landing station for aircraft of R is lawful, as 
there is no territorial sea around the landing station for 
aircraft 20 miles from any land. No protection, other 
than to assure the lawful exercise of the visit and search 
should be given to the Nagle. 

(d) The visit and search of the neutral merchant ves- 
sel within 1 mile of a causeway built out from shore to 
a landing station for aircraft is not lawful, as the mer- 
chant vessel is within territorial sea and the vessel of 
war of R should afford protection against any violation 
of the neutrality of state R, and should protect the mer- 
chant vessel against any violation of its rights within 
these waters. 

(e) All enemy aircraft are liable to capture if non- 
military, or to attack if military, when not on or over the 
landing station mentioned in (b) or (o). Enemy air- 
craft may not be lawfully captured or attacked when 
within 3 miles of the causeway or landing station 
mentioned in (d) but should be interned. 

Situation III 


States X and Y are using force against each other but 
have made no declaration of war. States A, B, and C 
agree severally and jointly to boycott both X and Y 
until they cease to use force. The boycott has been pro- 
claimed but no detailed instructions have been given to 
the navies. 

(a) A cruiser of state A, the Ajax, meets a merchant 
"vessel of state B, the Banner, apparently bound for a 
port of X. What should the Ajax do ? Would it make 
any difference if the Banner had sailed before the boy- 
cott was proclaimed ? Would a cruiser of B, the Brook, 
act in the same manner? 

(b) A cruiser of state C, the Crown, meets a merchant 
vessel of state X bound for state B. What action may 
it take? 

(c) The Crown later meets a merchant vessel of state 
D, the Drone, bound for state X. What action may the 
Crown take? 

(d) What action may the cruisers of states A, B, and 
C take against a vessel of war of state X convoying 
merchant vessels of X, or convoying merchant vessels 
of states D, E, and F? 

Solution III 

(a) The Ajax should determine for what port the Ban- 
ner is bound and if for a port of X or if uncertain, should 
send the Banner to the nearest port of A, B, or C. 

If the Banner had sailed before the boycott was pro- 
claimed, the Banner should be notified of the boycott and 
should be prohibited from entering any port of X. 



The Brook should act in the same manner unless for 
special reasons the Banner should be sent to a port of B. 

( b ) The Crown should take such action as would make 
certain that the merchant vessel of X goes to a port of 
B or some port of A or C. 

(c) The Crown, if assured of the nationality of the 
Drone, may take no action though the Drone may be kept 
from entering ports of X which are effectively closed. 

(d) Merchant vessels of X or D, E and F bound out 
from X under convoy of vessel of war of X are free to 
proceed but when bound for X the cruisers of states A, 
B, and C may take action to prevent entrance of the 
vessels to ports which are effectively closed and may 
route or take vessels of X bound for X to ports of A, B, 
and C. 


Defining war. — War is an ancient method of settling 
differences. Accounts of wars are among the earliest 
records of human relations. Wars of extermination were 
even approved in some of the early sacred books and the 
deeds of great warriors became the bases for much of 
classic literature in most languages. Monuments to war- 
riors appear in many cities and streets, and squares per- 
petuate their memories. Significant of a marked change 
in attitude is the tribute of general recognition given 
since 1918 to the " unknown soldier " in contrast with 
earlier practice of laudation of leaders whose names for 
various reasons had become well known. 

With the changing attitude toward war, there came at- 
tempts to regulate the conduct of war and to fix its limits. 
The limitation to which the concept of war had come 
among advanced thinkers toward the end of the sixteenth 
century is indicated in the definition of Gentilis (1588) 
in which he said " war is a properly conducted contest of 
armed public forces." (De jure belli, Bk. 1, c. 2.) 
Ayala in 1581 had asserted as a fact that there was not 
safety " in arms without law and discipline any more 


than in law without arms " (Westlake, translation, vol. 
II, p. V) not endorsing the formula " in time of war 
laws are silent." In succeeding centuries treatises upon 
the laws of war were common and it was recognized as 
an action " to which, from the nature of the thing and 
the absence of any common superior tribunal, nations 
are compelled to have recourse, in order to assert and 
vindicate their rights." (3 Phillimore, International 
Law, p. 49.) 

With the growth of states and the increasing burden 
of war, rules for its conduct became more and more de- 
fined, and the demands of states, not concerned that they 
should so far as possible be free of the consequence of 
hostilities, further restricted action of belligerents. 

The Hague Peace Conference of 1899, called on the 
initiative of the Czar of Russia, had in its agenda pro- 
posals for limitation of armament and for the regulation 
of the conduct of war. The Second Peace Conference at 
The Hague in 1907 elaborated the convention of 1899 in 
regard to war. The third convention of the Conference 
of 1907 " considering that it is important in order to en- 
sure the maintenance of pacific relations, that hostilities 
should not commence without previous warning " and 
that " a state of war should be notified without delay to 
neutral powers ", specifically recognized that hostilities 
between the signatories must not commence " Without 
previous and explicit warning ", and that the existence 
of a state of war should not take effect as regards neu- 
trals " until after the receipt of notification " unless it is 
" clearly established that they were in fact aware of the 
existence of a state of war." 

Definite and explicit notifications were made during 
the World War, some of these even specified the day, 
hour, and minute at which the state of war would exist. 
Provisions were made as to the time when the state of 
Avar should be regarded as at an end. Thus it was evi- 
dent that the previous uncertainty as to the period of 

3628—34 7 


hostilities was no longer a question giving rise to difficul- 
ties such as had previously been common. The com- 
mencement was to be determined by declaration and not, 
as had sometimes been the case, and would be the case 
under the definition of Gentiiis, by the actual " contest 
of the armed public forces ", but by the declaration stat- 
ing the moment when such contest might be regarded as 
lawful and when a state of Avar would be considered as 
existing. The implication was that lawful hostilities 
between states parties to the convention " should not 
commence without previous warning " as outlined. 

W-av might, therefore, be defined after 1907 as " the 
relation which exists between states or between political 
entities when there may lawfully be what Gentiiis in 
1588 defined as ' a properly conducted contest of armed 
public forces.' " (Wilson and Tucker, International 
Law., 8th ed., p. 235.) 

Measures short of wur. — That states should have no 
differences which could not be settled by diplomatic 
negotiation seems beyond immediate hope of realization. 
In addition to arbitration and judicial methods, for many 
years measures of reprisal, embargo, nonintercourse, dis- 
play or restricted use of force, and pacific blockade have 
i.»een used and have been regarded as short of war, even 
though sometimes called nonamicable. Such measures of 
force or other pressure were often resorted to, particu- 
larly from the early days of the nineteenth century. 

Measures short of war might be used by a neutral to- 
ward one or both belligerents when the neutral con- 
sidered such measures essential to securing fair treat- 

During the World War by Act of Congress, September 
8. 1916. the President of the United States was " au- 
thorized and empowered to withhold clearance " from 
vessels of a belligerent country denying American vessels 
or citizens " reciprocal liberty of commerce and equal 
liberty of trade." (39 U.S.Stat., p. 88, § 806.) An Act 
of 1887 had empowered the President to deny entrance 


to the waters of the United States of Canadian vessels in 
case the rights of American fishermen were denied or 
abridged in Canadian waters. ( 24 U.S.Stat., p. 475.) 

The Embargo and Non-Intercourse Acts of the early 
nineteenth century did not produce the anticipated 

The granting of " days of grace " for loading and de- 
parture of merchant vessels at the outbreak of war was 
common in the World War though owing to different 
circumstances was not an invariable practice. 

The display of force has also been common as em- 
phasizing the position which a state may be urging or 
as giving weight to a request for prompt action in a 
matter which one state has brought to the attention of 
another state. The display of force may even carry an 
intimation that it may be used to ensure respect for the 
rights of a state. During the disturbed conditions in 
Turkey in 1895 the United States felt the need of such 
support for its minister. 

The efforts of the minister have had the moral support of the 
presence of naval vessels of the United States on the Syrian 
and Adanan coasts from time to time as occasion required, and 
at the present time the San Francisco and Marblehead are about 
to be joined by the Minneapolis, which has lately been ordered 
to the eastern waters of the Mediterranean. (1895, Foreign Rela- 
tions, U.S., p. 1257.) 

Convention on Contract Debts, 1907, — The use of force 
in Venezuela to hasten the payment of claims of foreign 
nationals in 1902 emphasized the growing objection of 
some American states to this procedure. This objection 
had been embodied in the so-called "Drago Doctrine." 
The matter came before the Second Hague Peace Confer- 
ence, 1907, and resulted in the Convention Respecting the 
Limitation of the Employment of Force for the Recov- 
ery of Contract Debts, which provided : 

Article I. The Contracting Powers agree not to have recourse 
to armed force for the recovery of contract debts claimed from 
the Government of one country by the Government of another 
country as being due to its nationals. 


This undertaking is, however, not applicable when the debtor 
State refuses or neglects to reply to an offer of arbitration, or, 
after accepting the offer, prevents any " Compromis " from being 
agreed on, or, after the arbitration, fails to submit to the award. 
(1908, Naval War College, International Law Situations, p. 166.) 

The distinction between the use of force and war was 
clearly recognized in the Conference and this agreement 
was made with the purpose of specifically restricting the 
use of force. 

Eequests for a display of force in China were made 
when the diplomatic representatives feared an outbreak 
in 1900 and force was used without resort to war after 
the Boxer movement endangered the safety of foreigners. 

The display of force in 1902 by European powers to 
hasten Venezuelan action upon debts due their nationals 
was followed by the use of force which the European 
powers contended was not war but which resolved into 
war. In the payment of debts by Venezuela as a result 
of this action, preferential treatment was given to the 
powers which had used force. (Venezuelan Arbitration, 
Penfield's Report, 1903, p. 110.) The use of force as 
well as the war measures in this case was for the single 
purpose of securing payment of the debts and not for a 
general war object. 

Consequences of pacific blockade. — Some act resem- 
bling pacific blockade has been generally regarded as 
one of the methods for bringing an offending state to 
terms without resort to war. Pacific blockade has the 
support of long practice and of a large majority of 
authorities, particularly since the support given to this 
form of action in the resolutions of the Institut de Droit 
International in 1887. In general, the establishing of a 
pacific blockade is usually approved on the ground that 
it may make resort to war less probable, and thus limit 
the range of possible use of force. 

In its effects as between the state or states establish- 
ing the pacific blockade and the state or states under the 
blockade, the blockade may close the blockaded areas to 


communication so far as it is effectively maintained and 
measures lawful for maintenance of a war blockade may 
be taken to this end. As the effects of the pacific block- 
ade should, so far as possible, be confined to the parties 
concerned, third parties as well as their vessels and goods 
should be interfered with only as necessary for the 
physical maintenance of the pacific blockade. This is 
also evident from the fact that there are no prize courts 
to pass upon rights. It may be necessary that the block- 
ading forces approach, within the specific area of effec- 
tive maintenance of the blockade, vessels of third states 
for the purpose of verification of their right to fly the 
flag. The blockading force may take such measures as 
are necessary for closing the port before which it is 
maintaining an effective blockade. Though it may not 
take vessels of third states as prize, it may prevent their 
entrance ; and for such detention the blockading state as- 
sumes no liability, though notice must be given the vessel 
of the third state at the line of blockade or in an un- 
questionable manner. Vessels of third states must also be 
granted reasonable time to load and depart from a port 
under pacific blockade. 

Blockade of Buenos Ayres, 1838. — The declarations by 
which some of the blockades of the nineteenth century 
were established were not uniform. On March 28, 1838, 
a circular containing the following paragraph referring 
to the blockade of the port of Buenos Ayres and the 
Argentine coast was transmitted to the foreign diplo- 
matic and consular representatives^ by the French 

Je vous prie done, Monsieur, d'informer votre Government de 
cette mesure, et de faire connaitre en meme tems qu'il sera pris 
contre les batimens qui ehercherainet a entrer dans les Ports 
bloques, apres avoir recu la signification du blocus par ]'un des 
batimens de guerre Franeais, les mesures de rigueur autorisees 
par les Lois des Nations. (26 [1837-38] British and Foreign 
State Papers, p. 973.) 

Days of grace for entrance and departure till May 10 
were granted. 


Le Comte de Thomar^ 1848. — The Brazilian vessel Le 
Comte de Thomar had been before a prize commission 
established at Montevideo at the time of the so-called 
blockade of the la Plata. The vessel had been released, 
but war material in its cargo had been condemned by this 
prize commission, August 6, 1846. The case was subse- 
quently brought before the French Conseil d'Etat, which 
reviewed the case and declared : 

Considerant que, par la decision ci-dessus visee, la commission 
des prises, en ordonnant la restitution du navire le Comte de 
Thomar et des marchandises trouvees a bord, a neanmoins declare" 
valide la prise de 686 barils de poudre et de 50 quintaux de plomb 
en barre; 

Considerant que, si les regies et la pratique constante du droit 
maritime autorisent la saisie sur un navire neutre des objets de 
cette nature, qualifies de contrebade de guerre, c'est dans le cas 
seulement ou le batiment capteur appartient a une puissance 
belligerante ; 

Considerant que, qu'il resulte de la lettre du ministre des af- 
faires etrangeres que, nonobstant le blocus des c6tes de la repu- 
blique argentine, le gouvernement francais n'etait pas en etat de 
guerre avec ladite republique. 

Art. l er . Est declaree non valide la prise des barils de poudre 
et des plombs en barre trouves a bord du navire bresilien le 
Comte de Thomar. (I PistoyS & Duverdy, p. 390.) 

This decision is followed by this brief comment : 

Observations. — Nous comprenons qu'un Etat qui bloque un port, 
sans; faire la grande guerre, permette le transport des armes et 
munitions pour le port bloqu£. L'arrgt ci-dessus nous parait un 
acte de munificence et de liberalite, bien plus qu'un acte juridique. 

Cartagena, 1885. — At the time of domestic disturbance 
in Colombia in 1885 when other states were at peace, Mr. 
Bayard, Secretary of State, wrote to Mr. Whitney, Sec- 
retary of the Navy, of protection of nationals and their 
property. He said: 

At Cartagena, as at any other point in Colombia, not on the 
direct line of isthmian transit, the only question presented for 
our consideration is the general one of the protection of the 
lives and property of citizens of the United States established 


there. Our right in this respect is of course neither more nor 
less than that of any other government whose citizens or subjects 
may be found at such points under similar circumstances. Inter- 
ests of other nationalities than our own are understood to exist 
at Cartagena. Consequently no measure could be taken by forces 
of the United States for the protection of their citizens there, 
which we would not admit the perfect right of another govern- 
ment — that of England, France, or Germany, for instance — to em- 
ploy for the like protection of its subjects. * * * But where 
the place of their sojourn is a port open to the world's commerce, 
to which foreign vessels have a right to resort, the presence of 
war vessels of their nation is proper to protect the national 
shipping in port and the lives and property of neutral citizens 
on shore, from any injurious treatment contrary to the received 
international rules of warfare. Such war vessels may properly 
afford asylum to our own noncombatant citizens and normal pro- 
tection to their interests within the limits of legitimate warfare, 
and extreme cases may be conceived where the supreme law of 
self-preservation may require more effective measures if the 
bounds of legitimate warfare be overpassed. In no event, how- 
ever, should such measures amount to an intervention in the 
domestic disturbances of that country by aiding one belligerent: 
against the other. (6 Moore, International Law Digest, p, 29.) 

Greece, 1897. — The so-called pacific blockade of Greece 
in 1897 is one in regard to which the United States took 
a positive position. 

On February 10 the British Government sent to its 
representatives in Austria-Hungary, France, Germany, 
Greece, Italy, Russia, and Turkey, the following tele- 
graphic dispatch: 

The French Ambassador has suggested to me, and I have 
agreed, that instructions should be sent to our Naval Commanders 
in Cretan waters to concert, in case of need, with the Naval 
Commanders of the other Great Powers for preventing the dreek 
ships of war from taking any aggressive action, and for taking 
such measures as seem to be required by the circumstances which 
may arise. (90 British and Foreign States Papers, 1897-1898, 
p. 1299.) 

On the next day the British Admiralty telegraphed to 
its naval commander in Greek waters that 

It has been suggested by the French Government that the 
British and French Naval Commanders in Cretan waters should 


concert together, and with those of other Powers in case of 
necessity, to prevent any aggressive action of the Greek ships of 
war sent to Crete, and, generally speaking, for the adoption of 
any measures which circumstances may render expedient. The 
concurrence of Her Majesty's Government has been given. In- 
struct the Senior Naval Officer at Crete accordingly. (Ibid., 
p. 1300.) 

The German authorities favoring action by the Powers, 
mentioned that 

Not only should aggressive action on the part of the Greek 
ships be prevented, but any action which might encourage the 
revolution, and the very fact of their presence in Cretan waters 
was calculated to encourage it. In His Excellency's opinion, 
therefore, it would be necessary to give considerable latitude to 
the Naval Commanders as to the manner in which they should 
deal with the Greek ships of war, and to authorize them, if they 
should deem it necessary, to drive them away from Cretan waters. 
(Ibid., p. 1313.) 

On February 16, 1897, the British Government sent to 
its admiral in Cretan waters instructions to the following 
effect : 

You have authority to take any steps in conjunction with the 
other Naval Commanders, which may be agreed upon by the Ad- 
mirals in Council, for the purpose of preventing aggressive action 
on the part of the Greeks. (Ibid., p. 1316.) 

In accord with these instructions certain acts had been 
approved as was stated in a Foreign Office communica- 
tion of February 18, 1897 : 

The Russian Ambassador stated to-day that, at the request of 
the Ottoman Government, Admiral Andreeff, the Russian Naval 
Commander in Cretan waters, had been authorized to prevent 
Greek ships of war from interfering with the transport of Turk- 
ish troops between various points of the Cretan coast, and also to 
occupy by common accord certain other places on the coast, espe- 
cially Candia, Rethymo, Sitia, Kissamo, and Selino. 

The instructions given to the British Admiral will enable him to 
take part in any measures of this nature which the Naval Com- 
manders of the other Powers may agree. (91 British and Foreign 
State Papers, 1898-1899, p. 132.) 

About this time a joint blockade of Greek ports was 
proposed, but the Great Powers were faced with the prob- 

ATTITUDE IN 19 2 7 99 

lem of determining the status of Crete to which they 
had sent forces and some of the powers were in favor of 
the continuance of the status quo. 

The British Embassy in Berlin reported that the 
German Emperor frowned upon the annexation of Crete 
by Greece. As " the Great Powers had prevented the 
Sultan from sending troops to Crete ", they were under 
" moral obligation of preventing the Greeks from annex- 
ing the island. * * * If the Great Powers allowed 
themselves to be defied by Greece, not only would they 
make themselves ridiculous but they would make them- 
selves responsible for the consequences, which would 
probably be a general war. For his part, His Majesty 
could not agree to sanction such lamentable weakness on 
the part of the Powers, and he would withdraw his flag 
from the Mediterranean. I ventured to observe that this 
would bring the European concert to an end, to which 
His Majesty replied that it did not deserve to exist if it 
allowed its decisions to be overruled by Greece." (Ibid, 
p. 137). Many notes Avere exchanged among the Great 
Powers and the plan was advanced to make Crete a 
privileged province with special relations to Greece al- 
though it might remain a part of the Turkish Empire. 

The British Government informed the cooperating 
powers on February 24, 1897, of the policy which they 
considered as according to their view : 

1. That the establishment of administrative autonomy in Crete 
is, in their judgment, a necessary condition to the termination of 
the international occupation. 

2. That, subject to the above provision, Crete ought, in their 
judgment, to remain a portion of the Turkish Empire. 

3. That Turkey and Greece ought to be informed by the Powers 
of this resolution. 

4. That if either Turkey or Greece persistently refuse when 
required to withdraw their naval and military forces from the 
island, the Powers should impose their decision by force upon the 
State so refusing. (Ibid., p. 147.) 

Objection was raised to point 4 on the ground that 
Greece and Turkey should not be subject to identic treat- 


rnent as Turkish forces were lawfully in Crete while 
Greek forces were not, On March 20, 1897, the following 
proclamation signed by the ambassadors of the six 
powers was issued to the United States. 

The Undersigned, under instructions from their respective 
'Governments, have the honor to notify the Government of the 
United States that the admirals in command of the forces of 
Austria- Hungary, France, Germany, Great Britain, Italy and 
Russia in Cretan waters have decided to put the Island of Crete 
in a state of blockade, commencing the 21st instant at 8 a.m. 

The blockade will be general for all ships under the Greek flag. 
Ships of the six powers or neutral powers may enter into the 
ports occupied by the powers and land their merchandise, but 
only if it is not for the Greek troops or the interior of the island. 
Ihe ships may be visited by the ships of the international fleets. 

The limits of the blockade are comprised between 23°24' and 
26 c 30' longitude east of Greenwich, and 35°48' and 34°45' north 
latitude. (1897, Foreign Relations U.S., p. 254.) 

Joint blockade, 1913. — The officers in command of the 
British, Austro-Hungarian, French, German, and Italian 
naval forces notified a blockade as in force from 8 a.m. 
April 10, 1913, of the Adriatic coast from Antivari to 
ih& mouth of the River Dvin. This blockade was ex- 
tended to Durazzo from 6 a.m., April 23 and was raised 
from 2 p.m., May 14, 1913. 

In reply to a question in the House of Commons, April 
7 5 1913, Sir Edward Grey had said that certain British 
vessels were proceeding to the coast of Montenegro to 
take part in a naval demonstration " with the above 
named states." He offered the following explanation: 

We are party to it because we are a party with the other 
Great Powers to an agreement which the naval demonstration is 
intended to uphold. This agreement is that there should be 
an autonomous Albania. We willingly became a party to this, for 
the Albanians are separate in race, in language, and to a great 
-extent in religion. The war which is proceeding against them has 
long ceased to have any bearing on the war between Turkey and 
the Allies, or to be a war of liberation. The operations of Monte- 
negro against Scutari are part of a war of conquest, and there 
is no reason why the same sympathy that was felt for Montenegro 
or other countries contending for liberty and national existence 


should not be extended to the Albanian population of Scutari and 
its district, who are mainly Catholics and Moslem, and who are 
contending for their lands, their religion, their language, and 
their lives. (LI Parliamentary Debates, Commons, 1913, p. 816.) 

Sir Edward Grey further maintained that the agreement 
was essential to the peace of Europe and should be upheld 
by international action. 

Blockade of Greece, 1916. — The blockade of Greece by 
the Allies in 1916, declared to be in effect from December 
8, 8 a.m., allowed a period of 48 hours for the departure 
of " vessels of third powers " from Greek harbors. Pro- 
test against this blockade was made by Greek officials as 
contrary to international law on the ground that peaceful 
relations existed between Greece and the Allies. 

Italian blockade of Fiume, 1920. — The French " Jour- 
nal officiel de la Eepublique Francaise " of December 4> 
1920, contained the following notification : 

A la date du l er decembre 1920, le Gouvernement italien a in- 
fornie* le Gouvernement de la Republique de sa decision de tenir 
en §tat de blocus effectif par ses forces navales, a partir du 1" 
decembre k 10 heures, la zone cotiere de l'Etat independant de 
Fiume, des iles de Veglia et Arbe et des parages avoisinants. 

Un delai opportun sera laisse pour la sortie des navires de com- 
merce amis. 

This notification does not refer to neutrals but to " amis." 

The blockade of Bulgaria, October 16, 1915, referred 
to " friendly or neutral vessels " as being granted days of 

Reprisals. — Early ideas on the doctrine of reprisals, of 
which boycott may be regarded as a phase, appear among 
writers. Theologians of medieval times found little 
difficulty in supporting reprisals by Biblical injunctions. 
A clear distinction between reprisals in war and reprisals 
in peace was not always made. 

The treatise of Bartolus (1313-59) was quite full upon 

Victoria (1480-1546) and others of this period write 
upon the subject. Grotius refers to the reprisals more 
in relation to war. The words " retorsion ", " reprisal ", 


" embargo ", " nonintercourse " and the like, were not al- 
ways used in senses that could be clearly distinguished. 
Ketorsion was usually applied to retaliation in kind, 
while reprisals aimed to secure redress for action by 
which a state regarded itself to be injured and the means 
might not be analogous to the injury, but such as the 
offended state might regard as most effective. Two com- 
mercial states might set up by retorsion reciprocal trade 
barriers, while by reprisal one state might bring another 
to recognize privileges through holding its king who 
might chance to be within its borders. In ancient times 
the limits of reprisals were difficult to determine, though 
there was a growing sense that they should be propor- 
tioned to the injury for which remedy was sought. 

Opinions of writers. — Writers upon the topic of pacific 
blockade have shown wide difference of opinion as to 
whether it was a lawful measure short of war in spite of 
the title w pacific." Some have considered it merely a 
limited hostility but lawful; others have regarded it as 
unlawful; some have regarded it as lawful only as re- 
gards the blockading and blockaded parties; while still 
others have regarded it as lawful as regards all states and 
short of war. Practice seems to support the opinion that 
pacific blockade is a lawful measure of constraint short 
of war, but operating directly only upon the blockaded 
and blockading states. In several recent pacific block- 
ades, however, third states have not protested against 
the application of its provisions determining the num- 
ber of days of grace allowed to their merchant vessels 
to withdraw from the blockaded area. 

The measures undertaken under the name " pacific block- 
ade " seem to be recognized generally as lawful when con- 
fined to the states concerned. These measures seem to 
be adequately effective only when extended also to third 
states which would at least create a state of quasi war 
and quasi neutrality. There arises, therefore, the old 
question of effectivity of blockade but transferred to 


pacific blockade. Under modern conditions of commerce 
to be really effective a blockade must be against ships 
under all flags and this degree of constraint is not gen- 
erally recognized as an attribute of pacific blockade. 

Article 16 of the League of Nations Covenant implies 
measures of collective coercion that go beyond pacific 
blockade in their inclusive nature but, in the application 
of force by individual states for effective use of collective 
force " to protect the covenants of the League ", may be 
more restricted. 

Institut de Droit International, 1S87. — A report was 
made to the Institut de Droit International at the meet- 
ing in Heidelberg in 1887 upon the right of blockade 
in time of peace. Dr. Perels, who was the adviser of 
the German admiralty, made the report. This report 
admits that the pacific blockade is comparatively modern 
but that this does not deny its legality, as development 
of new relations among states implies new methods. 

Discussion, 1902. — This Naval War College considered 
certain aspects of pacific blockade in 1902 showing that 
while early practice before the middle of the nineteenth 
century had extended the operation of the blockade to 
third powers, later practice had tended to limit the 
effects of pacific blockade to the parties directly con- 
cerned. In the resume of the discussion in 1902, it was 

It would seem from the weight of authorities and from the 
majority of later cases, that pacific blockades should not bear 
upon third states except as they are affected by the constraint 
directly applied to the state blockaded, i.e., the vessels of a third 
state should be entirely free to go and come while such measures 
of constraint as may be decided upon may be applied to the 
blockaded state. 

If the need for interruption of relations between the block- 
aded state and third states is sufficiently serious to require the 
seizure of neutral vessels, it would seem to warrant the institu- 
tion of a regular blockade involving a state of war. 

If only the mild constraint which is short of war, the block- 
ade affecting merely the blockaded state's commerce, is necessary. 


then pacific blockade, though it works inconvenience, may be legit- 
imate. (1902, Naval War College, International Law Situations, 
p. 87.) 

It was further said in the conclusions that it was now 
(1902) the general opinion: 

(1) That pacific blockade should be exclusively confined to 
those who are parties to it and should not be extended to third 

(2) That pacific blockade as a measure short of war does not 
involve any neutrality on the part of those not parties to it. 

(3) That pacific blockade should be limited as far as possible 
that it may not be confused with belligerent blockade, which is 
definitely outlined. (Ibid., p. 97.) 

American Institute of International Law, 1925. — In 
1925 the American Institute of International Law pre- 
sented a plan for measures of repression enumerating 
" measures of self -redress short of war." In the list 
are included nonintercourse and pacific blockade. 
While pacific blockade is regarded in this project as a 
use of force, it is not regarded as giving rise to a state 
of war though when applied to vessels of third states 
it is considered " in effect an act of war." 

j Article 10. 

pacific blockade. 

Pacific blockade consists in the obstructing or closing of the 
ports or coasts of one country by another. Its purpose is to 
prevent access to or egress from a foreign port or coast — compell- 
ing the territorial sovereign to yield to the demands which have 
been made upon the blockaded state. If confined solely to the 
country against which the measure is taken, the act is said to be 
pacific, and it does not necessarily create a state of war. If the 
blockade affects the vessels of other nations, it is in effect an 
act of war. (20 American Journal, International Law, Sup., 
1925, project no. 29, p. 383.) 

Pacific blockade and Article 16. — In a report of May 
17, 1927, of the Secretary General of the League of Na- 
tions upon the legal position which would arise in en- 
forcing article 16 of the Covenant of the League of 
Nations in time of peace, it was said : 


The question how far the sanctions can lawfully be carried 
without resort to war is considered below with reference to each 
of the above classes of State. It may be noted here that, from 
the legal point of view, the existence Of a state of war between 
two States depends upon their intention and not upon the nature 
of their acts. Accordingly, measures of coercion, however drastic, 
which are not intended to create and are not regarded by the 
State to which they are applied as creating a state of war, do 
not legally establish a relation of war between the states con- 
cerned. This would seem to be the case even if, as is suggested 
to be possible under point (c) below, third States find it necessary 
to guide their own conduct by the view that a state of war 
exists. There is no general rule of international law under 
which application of the economic sanctions would automatically 
produce a state of war. (Reports and Resolutions, League of 
Nations Documents, A. 14. 1927. V., p. 83.) 

Later it is said : 

It is therefore prudent to conclude that, in applying the e 
nomic sanctions of Article 16 without resort to war, the Members 
of the League must fully respect the rights of third States. 
(Ibid., p. 86.) 

The hope was expressed, however, that third states 
would adopt a " benevolent attitude " toward the League 

It was also said in this report that : 

It would not in fact be prudent to attempt to lay down posi- 
tively in advance the measures which the Members of the League 
could consider themselves as legally entitled to adopt toward 
third States under the form of a pacific blockade. Not merely 
is the existing law uncertain but it is uncertain how far third 
States would or would not be disposed to take a narrow view >f 
the application of the existing law to the special and unprece- 
dented case of a pacific blockade applied under Article 16 of the 
Covenant. The tendency before the war of 1914-18 was to 
recognize that a pacific blockade imposed in the interests of inter- 
national order by a number of Powers had a much higher claim 
to be regarded as an institution of international law than a block- 
ade enforcing the particular interests of certain Powers, and a 
blockade under Article 16 is in the fullest sense one falling within 
the first category. 

It appears to be a legitimate conclusion from the practice and 
doctrine of international law before the war of 1914-18 that a 
pacific blockade imposed in application of Article 16 of the Cove- 


nant and observing certain conditions and limits would be a meas- 
ure the legal validity of which should be recognized by third 
States. To secure such recognition from third States, it would 
seem that the blockade ought to comply with the conditions as 
to notification and effectiveness which apply to a blockade in time 
of war. The blockade would give the right not to confiscate but 
to sequestrate ships of the blockaded State attempting to break 
through it and their cargoes, the ships and cargoes being ulti- 
mately returned without compensation to their owners. It would 
seem, further, that third States would not legally be entitled to 
object to the enforcement of the blockade, with the suggested 
consequences, against ships of Members of the League, whether 
applying the sanctions or not, and their cargoes. 

On the other hand, it is very doubtful whether the third State 
would be legally bound to acquiesce in the enforcement of the 
blockade against its own ships and their cargoes. (Ibid., p. 88.) 

Object of measures short of war and boycott. — The 
object of measures short of war is usually to settle some 
difference in which the parties are directly concerned. 
This is the case in retorsion, reprisals, and retaliation in 
various forms. Nonintercourse and embargo decrees 
usually contain some statement of injuries for which 
remedy is sought by the state establishing the regulation. 
Pacific blockade as a measure short of war has at times 
been used as a means of remedy for a condition in which 
the parties proclaiming the blockade are only indirectly 

International boycott has been advocated as a means of 
putting pressure upou a state which may be considered 
to have failed to fulfill some international obligation 
which may only remotely concern the states engaging in 
the boycott. The boycott is especially aimed to put an 
end to commercial relations with the boycotted state. 
When such boycott is solely an act of individuals who 
without any participation or action of the state refrain 
from commercial relations with the nationals of another 
state, the boycott as such has no bearing upon interna- 
tional law. A modern state would scarcely expect, with- 
out laying itself open to reprisals, to determine with 


whom or in what its nationals should trade other than by 
general tariff laws and treaties. 

If members of the League of Nations under article lfr 
prevent " all financial, commercial, or personal inter- 
course between the nationals of the covenant-breaking 
state and the nationals of any other state, whether a mem- 
ber of the League or not ", then such an act by whatever 
name it is called, ceases to be a private and becomes a 
public act with international consequences. If the so- 
called " covenant-breaking state " is a land-locked state,, 
the action of the other states would partake of the nature 
of a boycott which the participating states would be un- 
der obligations to enforce by appropriate measures. If 
the covenant-breaking state has a seacoast, the enforce- 
ment of the prevention called for would partake of the 
nature of what in earlier days has been called a pacific 
blockade, a measure which has often been used by states 
to bring another state to fulfill its obligations or to take 
certain action. 

While boycott was in its early development an in- 
dividual and unofficial action, as in China in the early 
part of the nineteenth century, it gradually took on a po- 
litical nature and when it became collective and more or 
less official, protests were made. The dangers of un- 
authorized, individual, or collective action by groups of 
individuals in retaliation against action of a foreign state 
was recognized. Such action might be based upon in- 
correct or partial understanding of the circumstances and 
might involve the state whose nationals engaged in the 
boycott in serious consequences, making the settlement of 
a question more difficult. At the same time, boycott was 
recognized as a measure which might be very potent if 
properly used but unless the state acted directly or in- 
directly, the state could not be held responsible for 
determining whether its nationals discriminated against 
the goods or commerce of a specific state. An unofficial 
boycott by nationals has extended in some instances not 

3628—34 8 


merely to goods and commerce but also to persons, lan- 
guage, journals, music, etc., of the state against which 
pressure was aimed. Article 16 of the Covenant of the 
League of Nations endorsed the prevention of all inter- 
course between the nationals of a covenant-breaking state 
and the nationals of other states, and provided for mu- 
tual support, even presuming the use of force, and af- 
fording passage through their territory to forces coop- 
erating to protect the covenants of the League. For 
maritime states somewhat similar measures had been 
undertaken for a century in what had come to be known 
as pacific blockade which aimed at a partial isolation of 
a state while article 16 aimed at complete isolation. 

Some have maintained that article 16 contemplates a 
resort to war on the part of the covenant-breaking state 
against which the other members of the League under- 
take only such measures as will isolate the offender. 
Others have maintained that an act of war having taken 
place, a state of war exists, and the consequences are 
limited only by the laws of war and neutrality. Para- 
graph 2, of article 16, seems to give the council authority 
to recommend such use of armed forces as may be needed 
to protect the covenants of the League without neces- 
sarily creating a state of war in the technical sense but 
authorizing the use of force to protect the covenant. 
The provisions of article 16 would not be necessarily 
applicable to a state of war but to a condition of isola- 
tion consequent upon a disregard of its covenants. Of 
course this article 16 was drawn with the expectation 
that all the more powerful states would be members of 
the League under which conditions its application would 
be more simple. 

Chinese boycott, 1905. — The termination of the treaty 
of 1894 between the United States and China after its 
10-year period in 1904, made it desirable to negotiate a 
new treaty. Rumors spread in China that its terms were 
to be detrimental to China and it was urged that the 

DANZIG, 19 .VI 109 

people should show their opposition by boycotting after 
August 1, 1904, "all American schools, business, goods, 
products, and ships unless the exclusion treaty guaran- 
teed equitable treatment to travelers, students, and mer- 
chants entering the United States." Minister Rockhill, 
long familiar with oriental diplomacy, found much to 
confirm his opinion that the boycott was " with official 
approval if not actually at official suggestion." The 
governmental encouragement seems evident from notices 
and proclamations. 

The Chinese Government was notified in early August, 
1905, that under early treaties the United States would 
hold China " responsible for any loss sustained by the 
American trade on account of any failure on the part 
of China to stop the present organized movement against 
the United States." (1905 Foreign Relations, U.S., p. 
212.) Later the Chinese Government informed Minister 
Rockhill that the Government assumed no responsibility 
as the movement was started by the traders. 

Boycott of Danzig. — Owing to differences of various 
kinds with the Polish Government accusations were 
made that Danzig had suffered by measures taken in 
Poland against the Free City. A report by the Govern- 
ment of the Free City of Danzig, August 14, 1931, says : 

A particularly serious difficulty in the relations between Danzig 
and Poland is due to the economic injury suffered by the Free 
City as the result of measures taken by the Polish Government. 
Unfortunately no alleviation or improvement has been percepti- 
ble in this respect since the session of the Council in May. An 
impression has, on the contrary, been created in the Danzig 
population that the Polish Government, by its economic meas- 
ures against Danzig, has been deliberately aiming at injuring the 
trade and industry of Danzig and at the same time at weakening, 
in this way, the resistance of the Danzig population to Polish 
political aims. It is incomprehensible, otherwise, that the Polish 
Government, which, in view of the Customs and economic union, 
has it in its power to grant Danzig all kinds of economic facil- 
ities, should bluntly reject all suggestions of the Danzig Govern- 
ment to this effect, and should on the contrary keep contriving 


new measures which are bound seriously to injure Danzig's trade 
and industry. The repeated attempts of Danzig — more par- 
ticularly through the commercial senator — to bring about an ex- 
change of views on all questions still pending have proved 
abortive. Poland has made no use of this opportunity, but has, 
without any real grounds, postponed negotiations indefinitely, 
especially on the subject of the exceptional importation of 
specific goods, of so-called quotas, which are indispensa- 
ble for the economic life of Danzig. The Danzig Chamber 
of Commerce has exerted itself in the same direction as the Dan- 
zig Government. As evidence may be mentioned the fact that it 
not long ago issued a warning in a public proclamation not to 
reply to the extensive boycotting of Danzig goods in Polish cir- 
cles by a counter boycott of Polish goods in Danzig. Economic 
co-operation, as provided for in the treaties, is a preliminary con- 
dition for regular political relations between Danzig and Poland. 
The unjust exclusion of Danzig trade from the Polish hinterland, 
the confiscation of Danzig goods in Poland — contrary to the spirit 
of the treaties — the steady increase in the boycotting movement, 
are bound to create in the particular circles affected in Danzig 
a state of discontent which may have most serious consequences. 
If normal relations are to be established between the two States, 
dependent upon one another as the result of the treaties, it is 
essential first and foremost to eliminate the economic pressure 
still brought to bear by Poland on Danzig. (Access to, or anchor- 
age in, the port of Danzig of Polish war vessels. Permanent 
Court of International Justice, Series C, No. 55, p. 36.) 

Committee on Boycotts and Peace, WS®. — In 1931 the 
Trustees of the Twentieth Century Fund entrusted to 
a committee the drawing up of a report on Economic 
Sanctions for the Pact of Paris. In the report of this 
committee, March 2, 1932, the following was mentioned 
as the crucial question to which the committee was giving 

What shall be the attitude and the policy of the other powers 
signatory to the Pact of Paris, if one or more of their number, 
failing to conform to the pledge given in the Pact, do begin or 
threaten hostilities? 

The Committee on Economic Sanctions is of opinion that the 
time has now fully come for the powers signatory to the Pact of 
Paris to declare, in answer to this question, what, under such 
circumstances, will be their policy. 


In the present state of world opinion, it is highly probable that 
no people whose government is signatory to the Pact of Paris 
will desire the use of their government's military and naval forces 
in the settlement of international quarrels arising elsewhere in 
the world. Nevertheless, a clear and definite violation of the 
pledges given in the Pact of Paris may easily lead to another 
world-wide armed conflict, this time finally and fatally disastrous 
in its effects. 

The Committee accordingly suggest that the signatories of the 
Pact of Paris should enter into an appropriate protocol or agree- 
ment supplemental to that Pact whereby they will engage them- 
selves, in the event of hostilities, actual or threatened, promptly 
to consult together with a view to determine upon measures of 
nonintercourse which would be appropriate to prevent the threat- 
ened breach of the Pact, or if it could not be prevented, to end 
hostilities and to restore the status existing prior to the breach. 

Among the measures of nonintercourse which could be applied 
would be: 

(1) A cessation of any shipment of arms or munitions or other 
absolute contraband; 

(2) Such further economic sanctions and concerted measures, 
short of the use of force, as may be determined to be appropriate 
and practical under the circumstances of any given case. (Boy- 
cotts and Peace, E. Clark, editor, p. 7.) 

The nonintercourse measures proposed are those short 
of the use of force. There are many grounds for believ- 
ing that the states of the world do not yet regard such 
measures as sufficing for their security. 

Measures of constraint. — Even before the World War 
there was a growing interest in the settlement of differ- 
ences between states without resort to war. In early 
times there was resort to measures of restraint upon com- 
mercial intercourse between states in order to bring one 
state to accept the terms proposed by another or in order 
to check certain actions. 

It was maintained that a state might control its own 
territories and determine at will what passed its fron- 
tiers. It was sometime stated that tariff acts were an 
evidence of the right of a state to control commerce. 
The reply to this was that tariff acts were of general ap- 
plication while these other measures were aimed at a 
single state. 


Whenever nationals of one state of their own volition 
assume an attitude which limits or puts an end to their 
relations with the nationals of another state, this atti- 
tude was regarded before 1914 as beyond state control 
and as an act for which a state could disclaim all re- 
sponsibility even though injury to the commerce or other 
injury might be suffered. If a state encouraged or offi- 
cially participated in this attitude, then there might be 
ground for international complaint on the part of a 
friendly state. 

Peace conferences as at Berne, 1892; Budapest, 1896; 
Paris, 1900; Milan, 1906; and Geneva, 1912, had pro- 
posed measures for making effective the awards of inter- 
national tribunals. Among the measures suggested 
which received particular support was the prohibition 
of economic relations with a recalcitrant state. Some 
peace conferences arrived at the conclusion that mere 
agitation for the spread of good will would not attain the 
hoped-for peace among states, and that states should be 
made to realize that peace was essential to national 
progress and preferable to war. To this end these con- 
ferences proposed measures which would result in eco- 
nomic isolation of states not fulfilling their international 

The Tampico incident, 19H. — In 1914 while there was 
a disturbed condition of affairs in Mexico, an event at 
Tampico gave rise to various complications. The event 
is thus set forth by the American Admiral Mayo in a 
communication to the Mexican commanding officer of the 
Huertista forces resisting the constitutionalists ashore: 

This morning an officer and squad of men of the Mexican mili- 
tary forces arrested and marched through the street of Tampico 
a commissioned officer of the United States Navy, the paymaster 
of the U.S.S. Dolphin, together with seven men composing the 
crew of the whaleboat of the Dolphin. 

At the time of this arrest the officer and men concerned were 
unarmed and engaged in loading cases of gasoline which had been 
purchased on shore. Part of these men were on the shore, but 


all, including the man or men in the boat, were forced to accom- 
pany the armed Mexican force. 

I do not need to tell you that taking men from a boat flying 
the American flag is a hostile act not to be excused. 

I have already received your verbal message of regret that this 
event had happened, and your statement that it was committed 
by an ignorant officer. 

The responsibility for hostile acts cannot be avoided by the 
plea of ignorance. 

In view of the publicity of this occurrence, I must require 
that you send me, by suitable members of your staff, formal dis- 
avowal of and apology for the act, together with your assurance 
that the officer responsible for it will receive severe punishment. 
Also that you publicly hoist the American flag in a prominent 
position on shore and salute it with twenty-one guns, which salute 
will be duly returned by this ship. 

Your answer to this communication, should reach me and the 
called-for salute be fired within twenty-four hours from 6 p.m. 
of this date. 


(1914, Foreign Relations, U.S., p. 448.) 

An apology was offered but the salute to the flag was 
not rendered and at length President Wilson on April 
20, addressed Congress. Setting forth the grave situa- 
tion in Mexico, he said: 

I, therefore, come to ask your approval that I should use the 
armed forces of the United States in such ways and to such an 
extent as may be necessary to obtain from General Huerta and 
his adherents the fullest recognition of the rights and dignity of 
the United States, even amidst the distressing conditions now 
unhappily obtaining in Mexico. 

There can in what we do be no thought of aggression or of 
selfish aggrandizement. We seek to maintain the dignity and 
authority of the United States only because we wish always to 
keep our great influence unimpaired for the uses of Uberty, both 
in the United States and wherever else it may be employed for 
the benefit of mankind. (Ibid., p. 476.) 

The address resulted in the following action: 

In view of the facts presented by the President of the United 
States in his address delivered to the Congress in joint session on 
the twentieth day of April, nineteen hundred and fourteen, with 
regard to certain affronts and indignities committed against the 
United States in Mexico : Be it 


Resolved oy the Senate and House of Representatives of the 
United States of America in Congress assembled, That the Presi- 
dent is justified in the employment of the armed forces of the 
United States to enforce his demand for unequivocal amends for 
certain affronts and indignities committed against the United 

Be it further resolved, That the United States disclaims any 
hostility to the Mexican people or any purpose to make war upon 

Approved, April 22, 1914. (38 U.S. Statutes, p. 770.) 

In communicating this action to American diplomatic 
representatives abroad on April 23, 1914, Secretary- 
Bryan said : 

Please note that the word " justified " is used instead of " au- 
thorized." This was done to emphasize the fact that the resolu- 
tion is not a declaration of war but contemplates only the specific 
redress of a specific indignity. 

Admiral Fletcher has taken possession of custom-house at Vera 
Cruz. No resistance at time, but later battery and scattered 
forces fired on Americans, which was returned. Four Americans 
killed, twenty wounded. Loss on Mexican side not known; esti- 
mated 150. (1914, Foreign Relations, U.S., p. 483.) 

Argentine, Brazil, and Chile offered good offices, which 
were accepted, and the mediators were to assemble at 
Niagara Falls, May 18. So far as possible it was hoped 
that the status quo would not be changed. After much 
negotiation, on November 20, 1914, the Acting Secretary 
of War telegraphed to General Funston, of the occupy- 
ing forces at Vera Cruz : 

You will evacuate Vera Cruz on Monday, November 23d. You 
will bring with you to the United States all funds in your pos- 
session from whatever source derived, both United States funds 
and Mexican customs receipts and taxes. You will also bring 
with you all the records, accounts, and money papers necessary 
to establish the integrity and accuracy of your financial and other 
administration. You will make an inventory of all goods in the 
customs house keeping the original thereof and leaving a copy 
with Consul Canada. You may also leave with Consul Canada 
such copies of accounts or other data as may be required by 
whomsoever may continue the government of the city. Do not 
make any arrangements with local Mexicans or with Mexican 


representatives from outside the city that could make it seem 
that you are recognizing the right of Carranza to jurisdiction over 
the city. It is merely desired that you get out in the best prac- 
tical fashion, leaving things in as good shape as possible and 
making no declaration that could be interpreted as committing 
this Government to the recognition of the authority of any indi- 
vidual or faction. (Ibid., p. 625.) 

Dominican Republic, 1916. — On January 19, 1916, the 
American Minister to the Dominican Republic tele- 
graphed to the Secretary of State saying : " I think the 
Department should be prepared for probable difficulty in 
the country soon." On account of this and other infor- 
mation, the Secretary of State informed the Minister 
that if requested the American Government would " fur- 
nish the forces necessary to suppress insurrection and 
maintain order." (1916, Foreign Relations, U.S., p. 
220.) The difficulty implied in the Minister's telegram, 
though a little delayed, arose, and war vessels were dis- 
patched to Santo Domingo and other ports. In May 
1916 forces under Admiral W. B. Caperton took control 
of the city of Santo Domingo and elsewhere in order to 
take such action " as is necessary to, protect United States 
forces ashore, preserve peace, lives, protection and prop- 
erty of American citizens and other foreigners and to 
constituted authority." (Ibid., p. 230.) 

Capt. H. S. Knapp, U.S.N., commander of the cruiser 
force, United States Atlantic Fleet, under authority of 
his Government, on November 29, 1916, declared the 
Dominican Republic to be in the state of military occupa- 
tion by forces of the United States. This proclamation 
declared the occupation to be undertaken to restore in- 
ternal order and to enable the Republic to fulfill its 
international obligations. 

The United States Government also took over military 
control in certain parts of Haiti in 1915 and 1916 in order 
" to safeguard as far as possible the interests of all con- 
cerned ", as insurrectionary movements had prevailed for 
some months. 


Russia, 1917. — A somewhat exceptional situation arose 
in consequence of the revolution in Russia in 1917. This 
led some of the Allied Powers to put what amounted to 
an embargo upon shipments to Russia, though in some 
cases the embargo extended to munitions only. The 
United States took the position that it was " important 
that the impression should not be created in the minds of 
the Russian people that they have been abandoned by 
the Allies or the United States Government, and for 
that reason this Government has told the Russian repre- 
sentatives that all shipments of supplies being manufac- 
tured in this country other than munitions will be per- 
mitted to go forward. The question came up as to 
whether railway supplies were munitions and Depart- 
ment told Russian Ambassador that licenses would be 
granted for shipment of engines and rails." (1918, For. 
Rel. U.S., 3 Russia, p. 107.) 

Dispute between Italy and Greece, 1923. — In dis- 
cussing whether articles 12 and 15 of the Covenant 
could be applied to the occupation of Corfu, M. Salandra, 
the Italian representative, read a note from his Govern- 
ment on this question : 

What is the Greek contention? It is that the occupation of 
Corfu was a hostile act which may lead to a rupture dangerous 
for theTeace of the world. Italy, however, has solemnly de- 
clared that this occupation had no hostile character — that it was 
merely designed to assure obligations arising out of responsibil- 
ity for a terrible crime. There is no danger of war. There is 
not even a suspension of diplomatic relations. * * * 

The creation of the League of Nations does not constitute a 
renunciation of States of all right to act for the defence and 
safety of their rights and their dignity. If this were so, no State 
would desire to belong to the League. (League of Nations, 
Official Journal, July-December, 1923, p. 1288.) 

After the settlement of the dispute, M. Salandra asked 
permission to present certain observations. In speaking 
of " peaceful occupation ", he said : 

It must not be thought that the Covenant of the League of 
Nations forbids these peaceful means of repression. They are 


not forbidden by any of its articles. I may add that in its Pre- 
amble the principles of international law are expressly recog- 
nised. Among these principles is the right of peaceful reprisals 
and of occupation as a measure of guarantee. These reprisals 
are therefore legitimate. (Ibid., p. 1314.) 

In a later discussion on the interpretation of certain 
articles of the Covenant, Lord Robert Cecil commented 
on M. Salandra's point of view, and said : 

In the last speech that he made on the Italo-Greek question, 
he (M. Salandra) undoubtedly took up the question of the legiti- 
macy of reprisals in general, not only with respect to the occupa- 
tion of territory but as to a great number of other reprisals; 
he argued with great force — and I am not at all prepared to say 
that I disagree with him — that, until the adoption of the Cove- 
nant at any rate, there was a right of reprisal or coercion — call 
it what you will — which one country might undertake in order 
tv enforce demands on another. 

In my young days, when I was more familiar with the text- 
books of international law than I am now, I think such actions 
used to be called measures short of war. 

Mr. Salandra also argued that the Covenant had made no 
difference to those rights. That is an interesting argument, and, 
though it would be hypocrisy to say that the question had not 
become acute owing to recent events, yet it is a question of very 
great interest and importance for the public law of Europe at 
this moment. A great number of instances have actually oc- 
curred, and others have been threatened, of measures of coercion 
being applied by one State against another. I think it is of great 
importance for the Council of the League to be informed exactly 
how far these are legal nowadays under the Covenant, because 
evidently the Council may have to deal with such situations at 
any moment. (Ibid., p. 1321.) 

Lord Robert Cecil suggested that this be put in the 
form of a proposal and submitted to the Permanent 
Court of International Justice. He proposed: 

The existence and nature of the right of one State to enforce 
demands made upon another State by measures of coercion and 
reprisal, and how far, if at all, the Covenant has modified any 
such rights as between Members of the League. 

It was finally decided to put certain questions before a 
Committee of Jurists. 


Questions before League of Nations, 1923. — Certain 
questions in regard to the use of force arose in 1923 early 
in the existence of the League of Nations. These ques- 
tions were referred to a Committee of Jurists consisting 
of M. Adatci (Japan), Lord Buckmaster (Great Brit- 
ain), Dr. Enrique Buero (Uruguay), M. F. de Castello 
Branco Clark (Brazil), M. Fromageot (France), Dr. 
van Hamel (director of the legal section of the Secre- 
tariat), M. Vittorio Rolandi Ricci (Italy), M. Oesten 
Unden (Sweden), Marquis de Villa Urrutia (Spain), 
and M. de Visscher (Belgium). One of these questions 
was : 

Question 4. 

Are measures of coercion which are not meant to constitute 
acts of war consistent with the terms of Article 12 to 15 of the 
Covenant when they are taken by one Member of the League of 
Nations against another Member of the League without prior re- 
course to the procedure laid down in those articles? (League of 
Nations, A. 8. 1924, p. 9. Report to Fifth Assembly.) 

To this question the reply was not conclusive but was 

supported in the vote approving the replies as a whole. 

The following was the reply to the fourth question: 

Coercive measures which are not intended to constitute acts of 
war may or may not be consistent with the provisions of Articles 
12 to 15 of the Covenant, and it is for the Council, when the dis- 
pute has been submitted to it, to decide immediately, having due 
regard to all the circumstances of the case and to the nature 
of the measures adopted, whether it should recommend the main- 
tenance or the withdrawal of such measures. (Ibid., p. 10.) 

Treaty of Versailles, 1919. — Some late treaties have 
contemplated the possibilities of reprisals and other 
measures. Even the Treaty of Versailles, which con- 
tains the Covenant of the League of Nations, contains 
some such clauses. In the part of that treaty relating 
to reparations, it is said: 

17. In case of default by Germany in the performance of any 
obligation under this Part of the present Treaty, the Commission 
will forthwith give notice of such default to each of the inter- 


ested Powers and may make such recommendations as to the 
action to be taken in consequence of such default as it may 
think necessary. 

18. The measures which the Allied and Associated Powers 
shall have the right to take, in case of voluntary default by 
Germany, and which Germany agrees not to regard as acts of 
war, may include economic and financial prohibitions and re- 
prisals and in general such other measures as the respective 
Governments may determine to be necessary in the circumstances. 
(Part VIII, annex II, 17, 18.) 

Force has been used in the occupation of certain areas 
of Germany. 

League of Nations Covenant, 1920. — The Covenant of 
the League of Nations became operative by the ratifica- 
tion of the Treaty of Versailles, January 10, 1920. The 
preamble of the Covenant states that: 

The High Contracting Parties. 

In order to promote international co-operation and to achieve 
international peace and security 

by the acceptance of obligations not to resort to war, 

by the prescription of open, just and honorable relations be- 
tween nations, • 

by the firm establishment of the understandings of international 
law as the actual rule of conduct among Governments, and 

by the maintenance of justice and a scrupulous respect for all 
treaty obligations in the dealings of organized peoples with one 
another, Agree to this Covenant of the League of Nations. (1919, 
Naval War College, Int. Law Documents, p. 8.) 

League of Nations and war. — The Covenant of the 
League of Nations in article 16 states: 

1. Should any Member of the League resort to war in disre- 
gard of its covenants under Articles 12, 13 or 15, it shall ipso 
facto be deemed to have committed an act of war against all 
other Members of the League, which hereby undertake immedi- 
ately to subject it to the severance of all trade or financial rela- 
tions, the prohibition of all intercourse between their nationals 
and the nationals of the covenant-breaking State, and the pre- 
vention of all financial, commercial or personal intercourse be- 
tween the nationals of the covenant-breaking State and the 
nationals of any other State, whether a Member of the League of 


2. It shall be the duty of the Council in such case to recom- 
mend to the several Governments concerned what effective mili- 
tary, naval or air force the Members of the League shall severally 
contribute to the armed forces to be used to protect the covenants 
of the League. 

3. The Members of the League agree, further, that they will 
mutually support one another in the financial and economic 
measures which are taken under this Article, in order to minimize 
the loss and inconvenience resulting from the above measures, and 
that they will mutually support one another in resisting any 
special measures aimed at one of their number by the covenant- 
breaking State, and that they will take the necessary steps to 
afford passage through their territory to the forces of any of the 
Members of the League which are co-operating to protect the 
covenants of the League. 

4. Any Member of the League which has violated any covenant 
of the League may be declared to be no longer a Member of the 
League by a vote of the Council concurred in by the Repre- 
sentatives of all the other Members of the League represented 

By this article 16 a state of war is contemplated in 
which the forces of members of the League are to be used, 
and by article IT a nonmember may take advantage of 
League procedure, or in caee the nonmember refuses 
article 16 may become operative, or, if both parties re- 
fuse, the Council of the League " may take such measures 
and make such recommendations as will prevent hos- 
tilities and will result in the settlement of the dispute." 
In article 11 it had been declared that " any war or 
threat of war, whether immediately affecting any of the 
Members of the League or not, is hereby declared a mat- 
ter of concern to the whole League, and the League shall 
take any action that may be deemed wise and effectual to 
safeguard the peace of nations." 

League of Nations and measures short of war. — Article 
10 and articles 12, 13, and 15 contemplate measures short 
of war but which may lead to war if League procedure 
is disregarded. Article 10 contains a positive obligation : 

The members of the League undertake to respect and preserve 
as against external aggression the territorial integrity and exist- 
ing political independence of all Members of the League. In case 


of any such aggression or in case of any threat of danger of 
such aggression the Council shall advise upon the means by which 
this obligation shall be fulfilled. 

Articles 12, 13, and 15 provide for procedure in case 
of " any dispute likely to lead to rupture " prior to " re- 
sort to war." The preservation of members of the 
League against aggression as contemplated in article 10 
might involve such measures short of war as the Council 
may advise. 

Relations of third states. — Specific measures involving 
the use of force without declaring war have been varied 
and have often been resorted to in order to avoid war. 
The use of force by one state against another may incon- 
venience third states without involving any of the rela- 
tions arising from the status of neutrality. 

Undoubtedly the Covenant of the League of Nations 
binds the members of the League to take such action as 
the League may deem wise " to safeguard the peace of 
nations." It may be difficult in a certain case to deter- 
mine the extent and exact nature of this obligation. It 
may be and has been contended that self -protection justi- 
fies such acts as may be essential to the preservation of 
a state's existence and until the League is in position to 
exercise " the enforcement by common action of interna- 
tional obligations ", a state must take necessary measures 
for its immediate security without waiting the slow pro- 
cesses of the League. States in becoming members of 
the League of Nations did not agree to give up their 
legitimate rights of self-defense but conceived that they 
would be more secure. The Covenant of the League of 
Nations recognizes the possibility of resort to war after 
a delay of 3 months when an award has been rendered 
by the arbitrators or a report by the Council. There 
remain many questions in regard to the relations of third 
states when the acts of two states seem to be leading to 
measures which are not strictly pacific. 

United States Navy Regulations. — The right of self- 
preservation is generally recognized both in time of peace 


and in time of war. In time of war acts which would 
not be regarded as lawful in time of peace are tolerated. 
Interference with neutral trade in certain articles as in 
case of contraband, with movement of ships to specified 
ports as in case of blockade, and other restrictions upon 
neutral action are generally admitted to be lawful. 
These are derived from the right of the belligerent to 
protect itself and to weaken its opponent. 

Even in time of peace it may be essential to use force. 
The Navy Eegulations of the United States state : 

1646. On occasions where injury to the United States or to 
citizens thereof is committed or threatened, in violation of the 
principles of international law or treaty rights, the commander in 
chief shall consult with the diplomatic representative or consul 
of the United States, and take such steps as the gravity of the 
case demands, reporting immediately to the Secretary of the 
Navy all the facts. The responsibility for any action taken by a 
naval force, however, rests wholly upon the commanding officer 

1647. The use of force against a foreign and friendly state, or 
against anyone within the territories thereof, is illegal. The 
right of self-preservation, however, is a right which belongs to 
States as well as to individuals, and in the case of States it in- 
cludes the protection of the State, its honor, and its possessions, 
and the lives and property of its citizens against arbitrary vio- 
lence, actual or impending, whereby the State or its citizens may 
suffer irreparable injury. The conditions calling for the applica- 
tion of the right of self-preservation can not be defined beforehand, 
but must be left to the sound judgment of responsible officers, who 
are to perform their duties in this respect with all possible care 
and forbearance. In no case shall force be exercised in time of 
peace otherwise than as an application of the right of self-preser- 
vation as above defined. It must be used only as a last resort, 
and then only to the extent which is absolutely necessary to ac- 
complish the end required. It can never be exercised with a view 
to inflicting punishment for acts already committed. 

1648. Whenever, in the application of the above-mentioned 
principles, it shall become necessary to land an armed force in 
foreign territory on occasions of political disturbance where the 
local authorities are unable to give adequate protection to life 
and property, the assent of such authorities, or of some one of 
them, shall first be obtained, if it can be done without prejudice 
to the interest involved. 


Locarno treaties, 1925. — The treaties relating to peace 
in Europe of October 16, 1925, commonly called the 
treaties of Locarno, aimed to give " supplementary guar- 
antees within the framework of the Covenant of the 
League of Nations, and the treaties in force between 

In the treaty of mutual guaranty between Germany, 
Belgium, France, Great Britain, and Italy, these states 
by article 1 : 

collectively and severally guarantee, in the manner provided in 
the following Articles, the maintenance of the territorial status 
quo resulting from the frontiers between Germany and Belgium 
and between Germany and France, and the inviolability of the 
said frontiers as fixed by or in pursuance of the Treaty of Peace 
signed at Versailles on June 28, 1919, and also the observance of 
the stipulations of Articles 42 and 43 of the said Treaty concern- 
ing the demilitarised zone. (54 League of Nations, Treaty Series, 
p. 289.) 

In article 2: 

Germany and Belgium, and also Germany and France, mutually 
undertake that they will in no case attack or invade each other 
or resort to war against each other. 

This stipulation shall not, however, apply in case of: 

(1) The exercise of the right of legitimate defence, that is to 
say, resistance to a violation of the undertaking contained in the 
previous paragraph or to a flagrant breach of Articles 42 and 43 
of the said Treaty of Versailles, if such breach constitutes an 
unprovoked act of aggression and by reason of the assembly of 
armed forces in the demilitarised zone, immediate action is 
necessary ; 

(2) Action in pursuance of article 16 of the Covenant of the 
League of Nations ; 

(3) Action as the result of a decision taken by the Assembly 
or by the Council of the League of Nations or in pursuance of 
article 15, paragraph 7, of the Covenant of the League of Na- 
tions, provided that in this last event the action is directed 
against a State which was the first to attack. (Ibid., p. 293.) 

Pact of Paris, 19£8.— The Pact of Paris, August 27, 
1928 (Kellogg-Briand Pact), has been generally ratified 

3628—34 9 


by the states of the world, and its essential articles are 
as follows : 

Art. 1. The high contracting parties solemnly declare in the 
names of their respective peoples that they condemn recourse to 
war for the solution of international controversies, and renounce 
it as an instrument of national policy in their relations with one 

Art. 2. The high contracting parties agree that the settlement 
or solution of all disputes or conflicts of whatever nature or of 
whatever origin they may be, which may arise among them, shall 
never be sought except by pacific means. 

Article I enunciates a condemnation and renunciation 
of international war. 

Article II, which is in form of an agreement, pro- 
vides that settlement or solution of disputes among the 
parties " shall never be sought except by pacific means." 

No procedure for putting this article into operation 
was provided. No provision was made for its termi- 
nation or revision. Some states have therefore regarded 
the pact as another step toward assuring the continua- 
tion of the status quo except as it may be modified by 
friendly negotiation. 

There remains, however, a great difference of opinion 
as to what are " pacific means." There are those who 
argue that the pact is much weaker than article 10 and 
the following articles of the Covenant of the League of 

The Senate of the United States in ratifying the Pact 
of Paris recorded in the report of the Senate Committee 
on Foreign Relations its understanding of the effect of 
the treaty. 

The committee reports the above treaty with the understanding 
that the right of self-defense is in no way curtailed or impaired 
by the terms or conditions of the treaty. Each nation is free 
at all times and regardless of the treaty provisions to defend 
itself, and is the sole judge of what constitutes the right of self- 
defense and the necessity and extent of the same. 

The United States regards the Monroe doctrine as a part of 
Us national security and defense. (70 Con. Rec, Jan. 15, 1929, 
p. 1730.) 


Collective action. — The proposals for collective action 
for the maintenance of peace or for the carrying out of 
an agreed policy has been common among states. The 
doctrine of balance of power and the concert of powers 
in Europe modified the course of action of European 
powers and the distribution of the spoils of war. Al- 
liances usually ostensibly for the maintenance of peace 
often sought the establishment of the status quo. Alli- 
ances and ententes frequently equalized opposing groups 
to a degree which made the risk of disturbing the peace 
greater than any party cared to assume. 

Some of the resultant combinations have put forth, 
doctrines of broad scope, while others have proposed 
regional policies. The division on the basis of " Great 
Powers " and " Minor Powers " has been fundamental in 
some of the acts of European states. The contentions 
which led to a more general recognition of the idea of 
equality of states made some new basis of collective ac- 
tion essential. This was realized at the close of the 
World War in 1918 and the Covenant of the League of 
Nations in part embodied the then existing aspirations 
for collective action by the states of the world. 

Early United States action. — The Articles of Confed- 
eration of the United States, 1778, provided for common 
action as in article III : 

The said states hereby severally enter into a firm league of 
friendship with each other, for their common defence, the security 
of their Liberties, and their mutual and general welfare, binding 
themselves to assist each other, against all force offered to, or 
attacks made upon them or any of them, on account of religion, 
sovereignty, trade, or any other pretence whatever. 

Article XIII provided further for observance of the 

Every state shall abide by the determinations of the united 
states in congress assembled, on all questions which by this con- 
federation are submitted to them. And the Articles of this 
confederation shall be inviolably observed by every state, and the 
union shall be perpetual ; nor shall any alteration at any time 
hereafter be made in any of them; unless such alteration be 


agreed to in a congress of the united states, and be afterwards 
confirmed by the legislatures of every state. 

Realizing that the lack of specified means for carrying 
out the provisions of article XIII might give rise to 
difficulties, the matter was considered and a form of 
action somewhat similar to that proposed in the League 
of Nations' Covenant was set forth for application in 
case of a state that had failed to observe article XIII: 

the said United States in Congress assembled are fully author- 
ized to employ the force of the United States as well by sea as 
by land to compel such State or States to fulfill their federal 
engagements, and particularly to make distraint on any of the 
effects vessels and merchandizes of such State or States or of 
any of the Citizens thereof wherever found and to prohibit and 
prevent their trade and intercourse as well with any other of the 
United States and the Citizens thereof, as with any foreign State, 
and as well by land as by sea until full compensation or compli- 
ance be obtained with respect to all requisitions made by the 
United States in Congress assembled in pursuance of the Articles 
of Confederation. (20 Jour. Cont. Cong., Hunt ed., p. 470.) 

Constitutional provisions of the United States. — Article 
1 of the Constitution of the United States, section 8, 
states that Congress shall have power to provide for the 
common defense and general welfare of the United States 
and " to regulate commerce with foreign nations." 

Under the constitutional powers an act of Congress, 
June 13, 1798 (1 U. S. Stat. 565), suspended commercial 
intercourse between the United States and France. 

British-Swedish concert, 1813-H. — By the treaty of 
March 3, 1813, Great Britain agreed to, cooperate with 
Sweden " for the maintenance of the independence of 
the North " and in article II, it was stated : 

that His Britannic Majesty will not only not oppose any obstacle 
to the annexation and union in perpetuity of the Kingdom of 
Norway as an integral part to the Kingdom of Sweden, but also 
will assist the views of His Majesty the King of Sweden to that 
effect, either by his good offices, or by employing, if it should be 
necessary, his naval co-operation in concert with the Swedish or 
Russian forces. (1 British and Foreign State Papers, p. 298.) 


The Swedish-Russian treaties of April 5 and June 15, 
also promised Russia both diplomatic and military aid. 
Prussia also agrees to aid Sweden by a separate and 
secret article, April 22, 1813. 

The British blockade of the ports of Norway was 
notified on April 29, 1814. The Foreign Office announce- 
ment was as follows : 

Earl Bathurst, one of His Majesty's Principal Secretaries of 
State, has this day notified, by command of His Royal Highness 
the Prince Regent, to the Ministers of Friendly Powers resident 
at this court, in the name and on the behalf of His Majesty, that 
the necessary measures have been taken by command of His 
Royal Highness, for the Blockade of the Ports of Norway, and 
that from this time all the measures authorized by the Law of 
Nations will be adopted and executed with respect to all Vessels 
which may attempt to violate the said Blockade. (Ibid., p. 1277.) 

This blockade was raised under the following notice 
issued September 3, 1814: 

Earl Bathurst, one of His Majesty's Principal Secretaries of 
State, has this day notified, by command of His Royal Highness 
the Prince Regent, to the Ministers of Friendly Powers resident 
at this Court that the necessary orders will forthwith be issued 
to the Officer commanding His Majesty's Ships and Vessels em- 
ployed in the Blockade of the Coast of Norway, to discontinue 
the said Blockade. (Ibid., p. 1277.) 

United action. — While the United States has generally 
refrained from agreeing in advance to act together with 
the military forces of other powers, yet it has at times 
expressed willingness to cooperate. Prince Bismarck in 
1870 raised question as to " whether it would not be for 
the common interest of the powers engaged in the China 
trade to inaugurate a plan of combined action, to be 
settled by previous arrangement between the various gov- 
ernments, or between the commanders of the several 
squadrons." (1870, Foreign Relations, U.S., p. 330.) 
The British Government gave orders for cooperation of 
its naval forces in combined measures and later Secre- 
tary Fish replied to the Minister of the North German 
Union as follows: 


Department of State, 
Washington, March 31, 1870. 

Sir: Referring to your notes of the 19th and 25th of February 
last, and of the 28th of March current, concerning a proposed 
combined action of the naval forces of the United States and of 
North Germany for the suppression of piracy in the Chinese 
waters, I have now the honor to inform you that the President 
has taken great pleasure in complying with the request of Count 
Bismarck, by directing instructions to be issued from the Navy 
Department to Admiral Rogers, to cooperate for that purpose 
with the naval forces of the North Germany and such other 
powers as shall receive similar instructions. 

The cooperation of Admiral Rogers and of the forces under 
his command will, however, be limited to cases of recognized 
piracy. He will be instructed to proceed in such a way as not 
to wound the sensibilities of the Chinese government, or to 
interfere with the lawful commerce of the Chinese subjects, or to 
conflict with the peaceful policy toward China in which the gov- 
ernment of North Germany and the United States so happily 

I avail myself of this opportunity to renew the assurances 
of my distinguished consideration. 

Hamilton Fish. 

(Ibid., p. 331.) 

Cooperation on slave trade. — The United States has 
from time to time agreed to cooperate with other states 
in the use of force. The suppression of the slave trade 
was a ground for such action as provided in the treaty 
of 1842 with Great Britain : 

Article VIII. The parties mutually stipulate that each shall 
prepare, equip, and maintain in service on the coast of Africa a 
sufficient and adequate squadron or naval force of vessels of suit- 
able numbers and descriptions, to carry in all not less than eighty 
guns, to enforce separately and respectively, the laws, rights, and 
obligations of each of the two countries for the suppression of 
the slave-trade, the said squadrons to be independent of each 
other, but the two Governments stipulating, nevertheless, to give 
such orders to the officers commanding their respective forces as 
shall enable them most effectively to act in concert and coopera- 
tion, upon mutual consultation, as exigencies may arise, for the 
attainment of the true object of this article, copies of all such 
orders to be communicated by each Government to the other, 
respectively. (8 U.S. Stat., p. 572.) 


Detailed provisions for rendering this cooperation 
more effective were embodied in the treaty of 1862. A 
restricted right of search and detention in specified areas 
was reciprocally allowed and mixed courts for adjudica- 
tion were established. The convention of 1870 provided 
for the discontinuance of the courts. 

The general act signed at Brussels, July 2, 1890, by 
17 states unified to a considerable extent the previ- 
ous conventions relating to the slave trade and at the 
same time increased the number of states authorized to 
act as regards one another for the suppression of the 
traffic. A sort of clearing house was to be set up as an 
international office at Zanzibar. By this convention the 
scope of right of common action of the signatory states 
was much enlarged. 

Colombia, 1885. — In 1884—85 there was an " unsettled 
state of affairs " in Colombia and owing to the " dis- 
ordered condition of society " and the anticipated " dis- 
regard of the rights of foreigners on the coast and 
Isthmus," the American minister requested the presence 
of an "American man-of-war." Early in 1885 communi- 
cation with the American minister was cut off by the dis- 
turbed conditions and the naval officer at Panama was 
obliged to act without communication with the diplo- 
matic representative at Bogota. During the period of 
" disordered conditions ", the forces of the United States 
took positive measures to protect the rights of American 

Boxer uprising in China, 1900. — During the Boxer 
uprising in China in 1900 the United States maintained 
so far as possible a policy of independent action, though 
cooperating with the other Powers when it seemed essen- 
tial. Regarding the sending by Mr. Conger, United 
States Minister to China, of an identic note to the 
Chinese Foreign Office, Mr. Hay, Secretary of State, 
wrote on March 22 : 

In connection with the identic note agreed upon with your 
colleagues of France, Germany, and Great Britain, and sent by you 


to the yamen on January 21 (inclosure 3, dispatch No. 31G) r 
while the Department finds no objection to the general terms of 
this paper [demanding publication of strong imperial decree 
without delay], it would have preferred if you had made separate 
representation on the question instead of the mode adopted, as 
the position of the United States in relation to China makes it 
expedient, that, while circumstances may sometimes require that 
it act on lines similar to those other treaty powers follow, it 
should do so singly and without the cooperation of other powers. 
(1900, Foreign Relations, U.S., p. 111.) 

On June 7, however, Mr. Conger communicated with 
Mr. Hay with regard to whether he should join the diplo- 
matic corps if this body found it " necessary to demand 
special audience with Emperor ", Mr. Hay replied : 

Act independently in protection of American interests where 
practicable, and concurrently with representatives of other powers 
if necessity arise. (Ibid., p. 142-43.) 

Mr. Conger on June 8 again suggested that he join the 
diplomatic corps in demanding " an audience with 
Emperor, the demand to be insisted upon, and to state 
to the Throne that unless Boxer war is immediately sup- 
pressed and order restored foreign powers will be com- 
pelled themselves to take measures to that end." To this 
suggestion Mr. Hay's replv was " Yes ", but in a sup- 
plementary message the following day he added, 

We have no policy in China except to protect with energy 
American interests, and especially American citizens and the lega- 
tion. There must be nothing done which would commit us to 
future action inconsistent with your standing instructions. There 
must be no alliances. (Ibid.) 

On July 3, in order to place before the world the position 
of the United States in regard to the restoration of order 
in China, Mr. Hay sent the following circular telegram 
to United States representatives in the legations of the 
principal powers with the instructions that the purport 
of this statement be communicated to the minister for 
foreign affairs. This telegram read : 

In this critical posture of affairs in China it is deemed appropri- 
ate to define the attitude of the United States as far as present 


circumstances permit this to be done. We adhere to the policy 
initiated by us in 1857, of peace with the Chinese nation, of 
furtherance of lawful commerce, and of protection of lives and 
property of our citizens by all means guaranteed under extrater- 
ritorial rights and by the law of nations. * * * The purpose 
of the President is, as it has been heretofore, to act concurrently 
with the other powers, first, in opening up communication with 
Pekin and rescuing American officials, missionaries, and other 
Americans who are in danger; secondly, in affording all possible 
protection everywhere in China to American life and property; 
thirdly, in guarding and protecting all legitimate American inter- 
ests; and fourthly, in aiding to prevent a spread of the disorders 
to the other provinces of the Empire and a recurrence of such 
disasters. * * * (Ibid., p. 299.) 

On the same day, Mr. Hay communicated to the French 
Charge d'Affaires in Washington that " instructions have 
been telegraphed to the commander of the United States 
naval forces in Chinese waters to confer with his col- 
leagues and report as to the force necessary to accomplish 
the ends now purposed and the proportionate force to 
be appropriately employed by the United States for their 
attainment in the general interest of the powers con- 
cerned." This was in response to the request of the 
French Government that there be a " concert of the 
powers, with a view to sending identical instructions to 
the commanding officers of their respective forces in the 
Pechili. * * * " (Ibid., pp. 318-319.) 

Later in the same month the French Government, 
through the Charge in Washington, suggested in a mem- 
orandum to the United States that " the Government of 
the Republic is disposed to confer with the powers in 
the precautions to be taken to prevent the shipment of 
arms which should be destined for China." A memo- 
randum of the same date, July 20, 1900, issued by the 
Department of State indicates that the Secretary of 
State had given orders to the officers in the various de- 
partments concerned " to exercise the utmost vigilance 
to prevent the dispatch or the landing in China of any 
arms destined for improper use in that country, and had 
given direct orders to the consuls of the United States 


in China to do all in their power in the same direction." 
(Ibid., p. 319.) 

In August conditions in China being in no way im- 
proved, it was suggested to the United States through 
its Embassy, that the German Government would like 
to know the views of the United States Government in 
regard to placing the American forces under the chief 
command of Field Marshal Count Waldersee in Chihli r 
and it was stated that Japan and Russia had already 
agreed to such an arrangement. The memorandum of 
the Department of State on this matter was transmitted 
to the German Foreign Office on August 10. It read: 

The Government of the United States will be much gratified 
to secure the command of so distinguished and experienced an 
officer as Count Waldersee for any combined military operations 
in which the American troops take part after the arrival of that 
officer in China to attain the purposes declared by this Govern- 
ment in the circular note delivered to the powers under date of 
July 3. 

The general commanding the American forces in China has 
already been authorized to agree with other commanders as to 
a common official direction of the various forces in their com- 
bined operations, preserving the integrity of his American division 
as a separate organization. A copy of this communication will be 
transmitted to him. 

As a considerable time must elapse before Count Waldersee 
can reach China and conditions are rapidly changing, it would 
seem desirable to leave questions of method to be determined in 
view of the conditions which may then exist. The suggestion 
of His Majesty the German Emperor that one or more military 
officers of each nationality should be attached to the headquarters 
of Count Waldersee to maintain communications with the national 
contingent meets the approval of this Government. (Ibid.,, 
p. 331.) 

Swedish proposition, 1916. — In 1916 the Swedish Min- 
ister in London made known in a memorandum to 
Colonel House the Swedish desire for — 

An effective collaboration with other neutral powers in view 
of conventional and idealistic interests. The Government, who 
are sincerely pacific, have been compelled to recognize that the 
difficulties must increase with the extension of the fight, an<$ 


that the possibilities for neutral interests to assert themselves 
evidently decrease in the same proportion as the circle of neutrals 
becomes narrowed down through the entry in the struggle of new 

The Government are convinced that it would prove a great 
and irreparable damage if the voice of neutrals could not make 
itself heard with sufficient weight. With regard to this, the 
Government do not only think of the difficulties and losses in- 
flicted upon one or the other of neutral countries through undue 
interference from the belligerents, inconveniences which might 
have been avoided through a unanimous action of the interested 
neutral states. 

The Swedish Government consider it as the precious duty and 
the inalienable right of all sincerely neutral countries to inter- 
vene with impartiality and firmness against every attempt, 
whenceever they come, to render non-valid and void international 
rules, which are the fruit of centuries of experience and work. 
By preserving the inheritance of the law of nations, a service is 
indeed also rendered to the belligerents themselves, who under 
altered circumstances may one day have bitterly to regret — also 
from practical point of view — the actions in which they now 
allow themselves to indulge in order to gain a casual and often 
doubtful advantage. (1916, Foreign Relations, U. S. Supplement 
part II, p. 689.) 

Sweden had in 1914 joined with Denmark and Norway 
in an identic note (1914 Id., supplement, p. 360), with 
which the Netherlands agreed, addressed to the German, 
French, British, and Russian ministers and protesting 
against the infringement of the rights of neutrals, and 
upholding the inviolability of the fundamental rules of 
international law. 

A later communication in a circular telegram to the 
American diplomatic officers in Europe stated that it was 
considered inadvisable by the American Government to 
participate in a conference of neutrals. The geograph- 
ical remoteness, the failure to include other American 
republics in the invitation, and the policy of independent 
action, were given as reasons for the decision. 

Defence and restraint. — In some form physical re- 
straint upon the action of man against man has been 
common from earliest times. The delegation to special 


persons of the exercise of this restraint upon the action 
of one man or a group of men against another man or 
group of men has gradually grown up as men have united 
in larger and more unified groups. While at certain 
stages of civilization, the group itself might mobilize for 
defense as in early American settlements, at other stages 
as in modern European states special classes are trained 
to defend the group with highly technical means. It 
seemed but a natural development from national to inter- 
national defense or restraint. International guaranties 
of security were proposed and sometimes embodied in 
agreements or treaties. The experience of the nine- 
teenth and early twentieth century has not confirmed the 
one time belief in the efficac}^ of such methods. 

As states assumed the protection of those subject to 
their authority, various measures were resorted to to 
assure the respect for this protection and for the rights 
claimed for their subjects. Reprisals in some form were 
approved among early states and quite fully developed 
in Roman practice and during the Middle Ages. Letters 
of marque and reprisal and privateering gave evidence of 
the survival of early methods. Sequestration of public 
or private property of an offending state or of its na- 
tionals, breaking off of official or other relations, expulsion 
or arrest of nationals, occupation of ports or territory of 
the offending state, or other measures might be taken in 
time of strained relations between states. Embargo and 
nonintercourse acts did put a degree of restraint upon 
offenders but not always to the anticipated degree. 
Pacific blockade, retorsion, and other measures short of 
war were from time to time tried with varying degree of 
success. The belief became more and more general in 
the twentieth century, particularly after the Hague Con- 
ference of 1899, that concerted action and international 
agreements would assure an orderly world. 

Severally and jointly. — When a group has agreed sev- 
erally and jointly not merely is the group under obliga- 


tion to act to secure the end for which the agreement 
is made, but each member is under an independent obli- 
gation to act. There is not the same obligation to act, 
however, when a state simply declares its intention to 
act in a certain manner or to follow a named policy, for 
its policy may from time to time change as probably 
was the case when it made the declaration. A declara- 
tion, being unilateral, rests upon the state making the 
declaration, and the use of its forces will depend upon 
the conditions under which the declaration is made. An 
agreement, however, has a binding force which implies 
that other powers as well as the parties to the agreement 
may expect the terms of the agreement to be fulfilled, 
though, of course, the agreement does not make unlawful 
action lawful. Even if many states make identic decla- 
rations, this fact does not prevent one of the states from 
renouncing the position taken in the declaration. 

As states A, B, and C have severally and jointly agreed 
to the boycott of X and Y, the action of one in the boy- 
cott is the action of all. The action of each should there- 
fore be that which would most effectively realize the 
ends for which the boycott was undertaken. The ports 
of each should be open, so far as the conduct of the boy- 
cott is concerned, on the same terms to vessels of all and 
the conduct of port authorities and other officials should 
as regards the boycott be similar. 

.Solution III 

(a) The Ajax should determine for what port the 
Banner is bound, and if for a port of X or if uncertain, 
should send the Banner to the nearest port of A, B, or C. 

If the Banner had sailed before the boycott was pro- 
claimed, the Banner should be notified of the boycott and 
should be prohibited from entering any port of X. 

The Brook should act in the same manner unless for 
special reasons the Banner should be sent to a port of B. 


(b) The Grown should take such action as would make 
certain that the merchant vessel of X goes to a port of 
B or some port of A or C. 

(c) The Crown, if assured of the nationality of the 
Drone, may take no action though the Drone may be kept 
from entering ports of X which are effectively closed. 

(d) Merchant vessels of X or D, E, and F bound out 
from X under convoy of vessel of war of X are free to 
proceed but when bound for X the cruisers of states A, 
B and C may take action to prevent entrance of the 
vessels to ports which are effectively closed and may 
route or take vessels of X bound for X to ports of A, 
B, and C. 



A.B.C. powers 114 

Aerial navigation : 

Convention, 1919 70 

International significance of 71 

Rules for 72 

Treaties regarding 73 

Aerodrome 59, 60, 72, 81 

Aggression 123 

Air, status of 69 

Air armaments 74,77 

Air commerce 73 

Aircraft : 

Definition of 71 

Military 80 

Aircraft landing stations 54, 59, 60, 84 

Terminology 77 

Airports, floating (see also Seadromes) 59 

.Air service, regulation of 74 

Air space 69, 71 

Alabama claims (see also Treaty of Washington) 6 

Albania 100 

American Institute of International Law 58,104 

Anna, the, 1805 57 

Area of hostilities 42 

Argentina 114 

Arms and munitions, shipment of 116, 131 

Artificial extensions of land 85 

Artificial structures, maritime jurisdiction and 53-87 

Asylum 97 

Aviation, civil: 

Internationalization of 71 

International action on 79 

Military features in construction of material for 80 

Awards, international ._ 112 

Ayala 90 

Balance of power 125 

:Bartolus 101 


138 INDEX 


Base of operations 2, 13 

Attitude of United States on 8, 15 

Definition of 25 

Essential idea of 5, 

Hall's attitude toward 15. 

Lawrence on 19 

Neutral waters as 4, 41 

Presumption as to G 

Westlake on, 1907 and 1910 18 

What constitutes 24 

Beacons 68. 

Belligerent duties 22,41 

U.S. regulations, 1793, on 3 

Belligerent rights 2,4 

Bering Sea Arbitration 61 

Bismarck 127 

Blockade (see also Pacific blockade) 98 

Joint, 1913 100 

Of Buenos Ayres, 1838 95 

Of Crete 100 

Of Fiume, 1920 101 

Of Greece. 1916 101 

Of Norway 127 

Boxer uprising 129 

Boycott 89-136 

Chinese, 1905 108 

Committee on 110 ■ 

Brazil 114 

Breakwaters 65, 86 

Brussels Act, 1890 129 

Buenos Ayres, blockade of 95. 

Buoys 57, 68, 84 

Bynkershoek 55 . 

Canada : 

Responsibility of, for radio 48 

United States Act, 1887. on entrance of vessels of 93 

Cartagena 96 - 

Chefoo 36 - 

Chile : 

Aerial regulation of 72 

Good offices of 114 

China : 

Boxer uprising, 1900 129 • 

Display of force against 94 

INDEX 139 

China — Continued. age 

Infringement of neutrality of 37 

Nine Power Treaty and 49 

Use of boycott in 107 

Civil war, U.S., coaling during 17 

Clearance of vessels 92 

Coaling 5, 7, 16 

Cochin China 17 

Cockburn, Lord Chief Justice, encroachments on the sea — 65 

Coercion 117, 118 

Collective action 125 

Colombia : 

American forces in 129 

Attitude toward radio stations, 1914-15 46 

Comity international technique d'experts juridiques 

aeriens, 1927 70 

Comity juridique international de l'aviation, 1930 60 

Commission of Jurists, 1923: 

On rules in regard to radio 46 

On coercive measures 118 

•Communications : 

Control during war 48 

Means of 45 

Common action , 125 

Common defense, U.S., constitutional provisions 126 

Comte de Thomar, Le 96 

Concert : 

British-Swedish 126 

European, in Cretan waters 97 

Contraband 2, 9, 14 

Contract debts, convention on recovery of 93 

Cooperation, on suppression of slave trade 128 

Cope v. Vallette Dry Dock Co 81 

Corfu, occupation of 116 

Crete : 

Blockade of 100 

European concert in waters of 97 

Cuba, wireless regulations, 1914 44 


Access of Polish warships to port of 43 

Boycott of 109 

Days of grace 93, 95, 101, 102 

-Defense 123, 133 

Use of air armament in 76 

£628—34 10 

140 INDEX 

Denmark : Page 

Attitude toward use of territorial waters 34 

Definition of island 63 

Protest against infringement of neutrality 133 

Disarmament Conference, 1932 71, 74, 79 

Discovery 61 

Display of force 93 

Dominican Republic 115 

Drago doctrine 93 

Due diligence 5,8,10,14,21 

Economic sanctions and Pact of Paris 110 

Eddystone lighthouse 65 

Embargo 93, 116, 134 

Evansville Co. v. Chero Cola Co., 1926 82 

Fish, Hamilton, on neutrality 28 

Fitting out and arming 3, 6, 8, 25 

Fiume, Italian blockade of, 1920 101 

Flag, of states having no seacoast 70 

Floating platforms. See Seadromes. 

Force, display of 93: 

Force, use of 93, 111 

Third states and 121 

United States Navy regulations on 121 

Franco-Prussian War, hovering during 26 

Fur Seal Arbitration 61 

Genet, M 2 

Gentilis 90 

Gericke 31 

Germany : 

Definition of island 62 

On European concert in Cretan waters 98 

Proposed international cooperation in China 127, 132 

Good oflSces 114 

Grant, President, neutrality proclamation of 26 

Great Britain : 

Alabama claims, and 9 

Cooperation in suppression of slave trade. 128 

Cooperation with Sweden 126 

Definition of island 62 

On belligerent vessels in neutral ports 38 

On European concert in Cretan waters 84. 97- 

INDEX 141 

Greece : Page 

Allied blockade of, 1916 101 

Dispute with Italy, 1923 116 

Neutrality of, 1917 42 

Grotius 55,101 

„ M T1899 91 

Hague Conference, j ^ ^ ^ 91 

Hague Conventions, 1907: 

V. Convention respecting rights and duties of neutral 

powers and persons in war on land 49, 50 

XIII. Convention concerning rights and duties of neu- 
tral powers in maritime war 21, 22, 24, 33, 41, 51 

Haiti 115 

Hall, J. A., on base of operations 15 

Hay, John, Secretary of State 129 

Hermann, The 27 

High-sea aerodromes. See Seadromes. 
High seas : 

Airports in 59 

Artificial extension into 85 

Use of 54,57 

High-water mark 64 

Hostile acts 12, 21, 113, 116 

Hovering « 26 

Huerta, General 113 

Hydroplanes 74 

Innocent passage, in air space 72 

Institut de Droit International, on : 

Blockade 94, 103 

Maritime jurisdiction 60 

Washington Treaty, 1871 12 

International law 20 

International police 79 

Internationalization 71, 83 

Intervention 31, 97 

United States 31,129 

Islands 57 

Acquisition of jurisdiction over 61 

Artificial 58, 62 

Assimilation of seadromes to 79 

Definition of 62 

Italo-Greek dispute 116. 

142 INDEX 

Japan : Page 

As to neutral and belligerent rights 39 

Neutrality proclamation, 1870 29 

Kellogg-Briand Pact. See Renunciation of war, treaty for. 
Korea 35, 43 

Landing station. See Aircraft landing station; Aero- 
dromes ; Seadromes. 
La Plata, blockade of 96 

Latouche Treville, The 27 

Lawrence, Thomas J. : Base of operations 19 

League of Nations : 

Commission on civil aviation 79 

Committee of jurists 118 

Council 43, 120, 123 

Covenant 117 

Article 16 103, 107, 119, 123 

War and i : 119 

Measures short of war and 120 

Lighthouses 56, 64 

During war 84 

Jurisdiction over 60 

Maritime belt around 67 

Lightships „. 67, 86 

Locarno treaties, 1925 123 

Madagascar 17 

Manchuria 35, 43 

Marginal sea 87 

Marine aerodromes. See Seadromes. 
Maritime jurisdiction : 

Extension of 57, 66, 69, 86 

Over artificial structures 53 

" Means at its disposal ", neutral government 25, 33, 47 

Means of warfare, dropping of 76 

Measures of constraint 111 

Measures short of war 92, 104, 111, 117, 120 

Mexico 112 

Military occupation 115 

Monroe doctrine 124 

Montenegro 100 

Munitions, shipment of 116, 131 

Naval demonstration 100 

Navigation, aids to 56 

INDEX 143 

Netherlands, The: Page 

Air navigation agreement with United States 73 

As to belligerent warships in neutral ports 23,38 

Definition of island 63 

Neutral collaboration, proposed 132 

Neutral jurisdiction 2,6,25 

Neutral ports : 

Admission of private vessels 23 

As base of operations 5 

Belligerent use of 3,9,13,14,32,36 

Entrance of belligerent vessels 9, 21 

Exclusion of vessels of war . 23 

Hague Conference, 1907, on 37 

Repeated use of 20, 25 

Use of 5,36 

Neutral rights and duties 5,8,12,21,37,40,41,49 

Neutral seadromes 83 

Neutral territory 13, 41 

Neutral waters 34, 50 

Belligerents in 1-51 

" Continuous use " of 20, 25 

Seizure in 42 

Neutrality 28, 40, 104, 132 

Breach of 8, 12, 17, 35, 37 

Proclamation : 

Japan, 1870 29 

1793 2 

United States-^ 

Neutralization 83 

Neuvieme Congres International de Legislation : 

Aerienne, 1930 59 

Nine-Power treaty, Washington Conference, 1921-22 49 

Nonintercourse 93, 106, 111 

Norway : 

Naval Cooperation against 126 

Protest of, against infringement of neutral rights 133 

Occupation 61, 65, 118 

International 99 

Military 115 

Of Corfu 116 

Oppenheim, L 60 

Pacific blockade 94, 102, 107 

Article 16 of the Covenant 104 

Definition of 104 

Neutrality and 104 

Third states and 95, 102, 105- 

144 INDEX 

Pact of Paris. See Renunciation of war, treaty for. Page 

Palmer, Sir Roundejl 13 

Panama Canal Zone, radio installation in, 1914 46 

Permanent Court of International Justice 44 

Poland : 

Access of warships of, to port of Danzig 43 

Boycott of Danzig by 109 

Portugal, rules for aerial navigation 72 

Prizes in neutral territory 9,30 

Products of the sea 57 

Protection : 

Afforded by neutral jurisdiction 6 

Of nationals 96,115,129 

Queen v. Keyn 65 

Radio : 

Canadian decision on state responsibility for 48 

Regulations on, 1914 44 

United States control of, 1914-18 51 

Use of 50 

See also Wireless telegraphy. 

Radio stations 44 

Belligerent 48 

Erection of 51 

Recruitment of men 7, 8, 18 

Reefs 63,69 

Region of war 43 

Renault, L 40 

Renunciation of war 124 

Treaty for 123 

Economic sanctions and 110 

United States Senate Committee on 124 

Repairs in neutral ports 7 

Reprisals 101, 106, 116, 118, 134 

Restraint 133 

Res communis 69 

Res nullius 69 

Retorsion 101, 106 

Rocks 62 

Rumania, definition of island 63 

Russell, Sir Charles, in Pur Seal Arbitration 61, 64, 66 

Russia, Allied embargo on shipments to, 1917 116 

Russian fleet, coaling of, in neutral waters 17 

INDEX 145 


rftusso- Japanese War, 1905 35,43,50. 

Ryeshitelni, the 36 

Salvage 81 


Bed of 65 

Innocent use of 55 

Products of 57 

Seacoast, states having no , 70, 79 

Seadromes 59, 60 

Comparison with aircraft carriers and ships 81 

Control of 78 

In time of war 59,60,82 

Need and importance of 78 

Neutralization or internationalization 83 

Sen Horse Reef t 69 

Sea walls • 86 

Selden 55 

Self-defense 32, 121, 124 

Self -protection 97,121 

Sequestration 134 

" Severally and jointly " 135 

Shenandoah, the 16 

Slave trade, suppression of 128 

Sojourn 21, 23 

Sovereignty -^ 40, 69 

Status quo 114, 124 

Straits 34 

Sweden : 

British concert, with, 1814 126 

Proposed neutral collaboration, 1916 132 

Switzerland, radio regulations, 1914 44 

Takahashi, Prof 36 

Tampico incident, 1914 112 

Territorial waters 17, 33, 43, 58, 62 

Belligerent use of 35 

Contiguous zone 58 

Passage through 35 

Schucking on 58 

Thalweg 85 

Three-mile limit 30,55,64,86 

Three months rule 17 

Tinos, the 42 

Transmission of information 47 

146 INDEX 

Treaties : Page 

Aerial navigation, 1919 70- 

For the renunciation of war, 1928 110, 123 

Great Britain-Sweden, 1813 126 

T1842 128 

Great Britain-United States. < lg ^ 2 128 

Locarno, 1925 123 

Netherlands-United States 73 

Nine-Power, Washington Conference 49 

Sweden-Russia 126 

Versailles 118 

Washington, 1871 : 

Rules of 12,18 

Second rule of 6,42 

Troops, carriage of 30 

Turkey, in relation to Crete 99 

Twenty-four hour rule 30 

Unfriendly act 29, 33 

United States: 

Articles of Confederation 125- 

Cabinet regulations, 1793, as to belligerent duties 3 

Chinese boycott and 108 

Common defense 125 

Cooperation with other powers 127 

Display of force 93 

Intervention by 31, 129 

Military occupation by 115 

Measures short of war 92 

Neutrality proclamation 2, 26 

One hour pursuit 69 

Russia and 116 

Use of force 112,115,121 

United States v. Kenning 69 

Use of force 93,111,118 

Third states and 121 

U.S. Navy regulations on 121 

Venezuela 94 

Vera Cruz 114 

Versailles, Treaty of 118 

Vessels : 

Belligerent, in neutral ports 4,9,13,32 

Private, admission to neutral ports 5, 23 


Admission to neutral ports 9, 23, 34 

Public, what is 10 j 

INDEX 147 

Victoria 101 

Visit and search 50,54,84 

Waldersee, Count 132 

War : 

Acts of 21 

Commencement of . 91 

Definition of 90 

Law of 91 

League of Nations Covenant and 119 

State of 2,91,108 

Washington, George, neutrality proclamation 2 

Washington, Treaty of, 1871 6,12,18,42 

Westlake 18, 66 

Wharf boat, as vessel 82 

Wharves 85 

Wilson, Woodrow ! 113 

Wireless telegraphy (see also Radio) 37,42,44